Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10. Nuremberg, October 1946 - April, 1949

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WAR CRIMINALS

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CONTROL COUNCIL LAW No. 10

NUERNBERG

OCTOBER 1946-APRIL 1949

VOLUME XI

UNITED STATES

GOVERNMENT PRINTING OFFICE
WASHINGTON : 1950

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CONTENTS

“The High Command, Case”

(Introductory material and basic directives under which the trials were conducted together
with Chapters I through VII-B of High Command Case arc printed in Volume X.)

Page

VII. War Crimes and Crimes Against Humanity — Selections from the

Evidence (cont’d) 1

C. Measures Against Prisoners of War and Enemy Belligerents — 1

1. Introduction 1

2. Treatment of Prisoners of War in German Prisoner-of-

War Camps 2

3. Killing of “Dispersed” Soldiers 63

4. The Commando Order 73

5. The Terror Flyer Order 166

D. The “Night and Fog” Decree and the Terror and Sabotage

Decrees 195

1. Introduction 195

2. The “Night and Fog” Decree 196

3. The Terror and Sabotage Decrees 235

E. Deportation and Enslavement of Civilians 254

1. Introduction 254

2. Contemporaneous Documents 255

3. Extracts from the Testimony of Defense Witnesses

Westerkamp and Heidkaemper 285

F. Plunder of Public and Private Property, Destruction, and

Devastation Not Justified by Military Necessity 305

1. Introduction 305

2. Contemporaneous Documents 306

3. Defense Evidence 317

VIII. Photographic Reproductions of Documentary Evidence 323

IX. Final Argumentation 331

A. Introduction 331

B. Extracts from the Closing Statement of the Prosecution 331

C. Extracts from the Closing Statement for Defendant Reinhardt 374

I). Extracts from the Closing Statement for Defendant Warlimont 377

E. Closing Statement for the Defendant Lehmann 379

F. Extracts from Closing Briefs of the Defense 398

1. Defendant von Kuechler 398

2. Defendant Hoth 406

3. Defendant Reinhardt 408

4. Defendant Hollidt 414

5. Defendant von Roques 416

6. Defendant Lehmann 433

G. Extracts from Final Briefs Concerning the Responsibility of

a Chief of Staff 446

1. Introduction 446

2. Extract from the Closing Brief for the Defendant Woehler 446

3. Extract from the Closing Brief of the Prosecution Against

the Defendant Woehler 450

X. Final Statement of Defendant von Leeb to the Tribunal on Behalf

of All Defendants 458

Page

XI. Judgment 462

The Indictment 463

Count One 463

Count Two 463

Count Three 465

Count Four 465

Conspiracy Count 482

Controlling Principles in Trial 483

Count One of the Indictment — Aggressive War 485

War Crimes and Crimes Against Humanity 491

Crimes Against Civilians 495

German Military System 501

Superior Orders 507

Orders 509

Commissar Order 515

Barbarossa Jurisdiction Order 521

Commando Order 525

Night and Fog Decree , 527

Hostages and Reprisals 528

Partisan Warfare 529

The Hague and Geneva Conventions 532

Responsibility of Commanders of Occupied Territories 542

Hitler and the Wehrmacht 549

Wilhelm von Leeb 553

Hugo Sperrle 564

Georg Karl Friedrich- Wilhelm von Kuechler 565

Hermann Hoth 580

Hans Reinhardt 596

The Commissar Order 597

The Commando Order 599

Hans von Salmuth 614

Karl Hollidt 625

Otto Schniewind 629

Karl von Roques 630

Hermann Reinecke 648

Walter Warlimont 661

Otto Woehler 683

Rudolf Lehmann 690

Sentences 695

XII. Confirmation of Sentences by the Military Governor of the U.S.

Zone of Occupation 698

XIII. Order of the United States Supreme Court Denying Writs of

Habeas Corpus 701

Appendix 701

Glossary of Abbreviations and Terms 701

Table of Comparative Ranks 703

List of Witnesses in Case 12 704

Index of Documents and Testimony in Case 12 707

IV

“ The Hostage Case”

Page

Introduction 759

Order Constituting Tribunal V 761

Members of the Tribunal 762

Prosecution Counsel : 763

Defense Counsel 763

I. Indictment 764

II. Arraignment 782

III. Opening Statements 785

A. Extracts from Opening Statement of the Prosecution 785

B. Opening Statement for Defendant List 855

C. Opening Statement for Defendant Foertsch 897

IV. The Theater of War in Southeastern Europe 904

A. Introduction 904

B. Organization of the German Army 905

C. Relations of the German Army with Satellite Governments and

Satellite Armed Forces 912

D. Cooperation of the German Army with the SS and the

Einsatzgruppen 924

E. Extract from Testimony of Defendant Rendulic 934

V. Hostages, Reprisals, and Collective Measures in the Balkans.

Measures Against Partisans and Partisan Areas 937

A. Introduction 937

B. Contemporaneous Documents 938

C. Testimony of Defendants and Defense Witnesses 1036

VI. Treatment of Captured Members of the Italian Army 1078

A. Introduction 1078

B. Contemporaneous Documents 1078

C. Extracts from Testimony of Defendant Lanz 1088

VII. Destruction in and Evacuation of Finmark, Norway 1113

A. Introduction 1113

B. Contemporaneous Documents 1113

C. Extract from Testimony of Defendant Rendulic 1123

VIII. Photographic Reproductions of Documentary Evidence 1137

IX. Closing Statements 1141

A. Extracts from Closing Statement of the Prosecution 1141

B. Extracts from Closing Statement for Defendant List 1172

X. Final Statement of Defendant List to the Tribunal on Behalf

of All Defendants 1228

XI. Judgment 1230

A. Opinion and Judgment of Military Tribunal V 1230

B. Sentences 1318

XII. Confirmation of Sentences by Military Governor of the United

States Zone of Occupation 1320

XIII. Extract of Order of Supreme Court of the United States Deny-

ing Leave to file for Habeas Corpus 1322

Appendix 1323

Table of Comparative Ranks 1323

List of Witnesses in Case 7 1324

Index of Documents and Testimonies in Case 7 1326

V

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VII. WAR CRIMES AND CRIMES AGAINST HUMANITY
—SELECTIONS FROM THE EVIDENCE— Continued

C. Measures Against Prisoners of War and
Enemy Belligerents
I. INTRODUCTION

The principal charges of criminal conduct against enemy bel-
ligerents and prisoners of war are contained in paragraph 45-58
of the indictment (count two). These charges can briefly be sum-
marized as murder and ill-treatment, denial of rights and status,
and employment under inhumane conditions and prohibited cir-
cumstances.

In connection with the evidence reproduced below on the treat-
ment of prisoners of war and “dispersed” soldiers (sections 2
and 3), reference is made to evidence reproduced in the earlier
sections on the Commissar Order and the Barbarossa Jurisdiction
Order (section VII A and B 1, Vol. X). The prosecution contended
that the uniformed commissars were members of the Soviet Army
and, as such, entitled to treatment as prisoners of war after cap-
ture. The “dispersed” soldiers were uniformed soldiers of the
Soviet Army who, after having been separated from their units,
continued fighting in the rear of the front line, either as individ-
uals or in small groups, and in defiance of the German order to
surrender before a set date. The prosecution claimed that such
soldiers, upon capture, were entitled to prisoner of war status and
privileges, whereas the defense contended that they were to be re-
garded as francs-tireurs and persons who have lost prisoner of
war status.

The documentary evidence on the Commando Order (some of
which is reproduced in section 4) was particularly voluminous.
Space limitations have prevented the reproduction here of the
correspondence between the OKW and the German Foreign Office
concerning an answer to the British Government’s protest con-
cerning the treatment of captured commandos, the correspondence
about the treatment of commandos who had been captured in
Norway before the issuance of the Commando Order, and other
matters. The evidence included herein deals quite thoroughly with
the conduct of the defendants Warlimont and Lehmann during the
period when the text of the order was under consideration. The
materials included also involve the defendant Warlimont’s con-
nection with the practical interpretation and execution of the
order itself.

The High Command of the Army (OKH) distributed the Com-
mando Order to all the army groups and armies in Russia, as

1

shown by the distribution list to Document NOKW-1737, Prose-
cution Exhibit 126. The enclosure to this document, the Com-
mando Order itself, is omitted from that exhibit, but it is printed
in full in Document 498-PS, Prosecution Exhibit 124.

The only defendant shown by the evidence to have been engaged
in preliminary discussions of the Terror Flyer Order (section 5)
was defendant Warlimont. This order is set forth in Document
NOKW-3060, Prosecution Exhibit 1462.

Prisoners of war were likewise among the thousands of persons
killed by the Einsatzgruppen in the Occupied Eastern Areas. See
the materials in Section VII B 5, Vol. X, and in the “Einsatzgrup-
pen Case” (United States vs. Otto Ohlendorf, et al., Case No. 9,
Vol. IV).

2. TREATMENT OF PRISONERS OF WAR IN GERMAN
PRISONER OF WAR CAMPS

PARTIAL TRANSLATION OF DOCUMENT EC-338 1
PROSECUTION EXHIBIT 253

COMMENTS BY CANARIS (CHIEF OF INTELLIGENCE, OKW), 15 SEP-
TEMBER 1941, CONCERNING OKW DIRECTIVE, 8 SEPTEMBER 1941,
ON THE TREATMENT OF SOVIET RUSSIAN PW'S 2

Office Foreign Counterintelligence
No. 9731/41 Secret Chief Foreign
F XIV, E 1.

Berlin, 15 September 1941

Secret

* * * * * * *

To be submitted to the Chief, OKW

Memorandum

Subject : Directive for the treatment of Soviet prisoners of war

Reference: 2 f 24.11 General Armed Forces Office/PW’s (I)
No. 3058/41 Secret of 8 September 1941

To be submitted to the Chief of General Armed Forces Office
[of OKW]

1 See Nazi Conspiracy and Aggression, vol. VII; pp. 411-416, U.S. Government Printing
Office, Washington, 1946, for more complete translation of document.

2 Document NO-3417, Pros. Ex. 363 reproduced below in this section, also refers to the
same subject.

2

I

1. The legal position is as follows :

The Geneva Convention for the treatment of prisoners of war
is not valid between Germany and the U.S.S.R., so only the prin-
ciples of general international law concerning the treatment of
prisoners of war apply. Since the 18th century these have gradu-
ally been established along the lines that war captivity is neither
revenge nor punishment, but solely protective custody, the only
purpose of which is to prevent the prisoners of war from further
participation in the war. This principle was developed in accord-
ance with the view held by all armies that it is contrary to military
tradition to kill or injure helpless people ; this is also in the interest
of all belligerents in order to prevent mistreatment of their own
soldiers in case of capture.

2. The regulations for the treatment of Soviet prisoners of war
(enclosure 1) are based on a fundamentally different viewpoint,
as is shown in the opening sentences. According to this view,
military service for the Soviets is not considered military duty but,
because of the murders committed by the Russians, is character-
ized in its totality as a crime. Hence the validity of international
legal standards in wartime is denied in the war against bolshevism.
Furthermore, much is set aside which, according to previous ex-
perience has proved itself not only militarily useful but was also
considered absolutely essential for the maintenance of discipline
and efficiency of our own troops.

3. The regulations are very general. But if one considers their
basic principles, the expressly approved measures will result in
arbitrary mistreatments and killings, even if arbitrary actions are
formally prohibited.

a. This can be seen in the first place from the instructions about
the use of arms in cases of insubordination. The guards and their
superior officers who are entirely unacquainted with the languages
of the prisoners of war will frequently not be able to determine
whether noncompliance with orders is caused by misunderstand-
ing or disobedience. The principle — “Use of arms against Soviet
prisoners of war is as a rule legal” exempts the guards from any
obligation for deliberation.

b. The treatment of the prisoners of war is removed to a large
extent from the supervision of the armed forces ; to outward ap-
pearances, however, the responsibility will remain with the armed
forces.

(1) The segregation of the civilians and politically undesirable
prisoners of war, as well as the decision over their fate is effected
by the Einsatzkommandos of the Security Police and the Security

3

Service according to directives which are unknown to the armed
forces authorities and the compliance with which they cannot
check.

[Handwritten] very efficient!

[Handwritten] not at all.

(2) The establishment of a camp police equipped with sticks,
whips, and similar tools is contrary to military conceptions even
though the policing is done by camp inmates; furthermore, the
armed forces authorities are thus handing over a means of punish-
ment of unknown persons without being able really to check on
its use.

c. The final phrase of the regulation suggests that the com-
manders of the prisoner of war camps act even more severely
than the regulations provide, in order to be sure of not being held
responsible themselves.

4. According to general experience, unfair treatment provokes
the spirit of insubordination, so that the guarding of these prison-
ers of war in all probability will always remain difficult. The
regulations already provide for the employment of one guard for
each 10 prisoners during work, so that with the present figure of
approximately 1.5 millions of employable prisoners a minimum of
150,000 men is required for guard duty.

5. Enclosure 2 is a translation of the Russian decree concerning
prisoners of war, which complies with the principles of general
international law, and to a very large extent also with the Geneva
Convention for the treatment of prisoners of war. This decree is
no doubt disregarded by the Russian troops at the front, but both
the Russian decree as well as the German regulations are mostly
for the home territory. Although it can hardly be assumed that
the Russian decree will be adhered to in the Russian territory of
the Soviet Union, there is the danger that the German regulations
will be seized upon by the enemy propaganda and will be com-
pared with the Russian decree.

6. The reconstruction of the occupied territories, so essential
for the German war economy, will be handicapped. It will be
made politically impossible for those prisoners of war who, be-
cause of their anti-Bolshevist attitude, or because of some special
training, or for other reasons could be used for the administration
of these territories, to work for us after their release, even if they
still want to do so after their experiences in the prisoner of war
camps. Instead of taking advantage of the tensions among the
population of the occupied territories to the advantage of the
German administration, the mobilization of all the internal forces
of opposition in Russia for unified hostility will be facilitated.

4

7. Under the special conditions prevailing in the Russian theater
of war, the will to resist of the enemy troops must be vastly
strengthened by the enemy intelligence service and the very rap-
idly effective whispering campaign.

8. Possible sources of information will be blocked; prisoners
of war, as internal political opponents of the Bolshevist regime,
especially those belonging to minorities, who could be used for
counterintelligence purposes, will lose any willingness they may
have to be recruited. This applies especially to the nationalities
of the territory of the Caucasus, which is so decisive for the war
economy.

9. It will be impossible to protest against the bad treatment of
German soldiers in Soviet Russian captivity.

[Handwritten] I consider it useless!

II

Office Foreign Counterintelligence has not been consulted before
issuance of these regulations or the order for their execution. For
fundamental reasons as well as for the detrimental results cer-
tainly to be expected with regard to political and military matters,
the Office Foreign Counterintelligence has considerable misgivings
about them.

[Signed] Canaris

2 Enclosures

*******

PARTIAL TRANSLATION OF DOCUMENT NO-3414
PROSECUTION EXHIBIT 362

EXTRACT FROM OPERATIONAL ORDER NO. 8, BY HEYDRICH, CHIEF
OF THE SECURITY POLICE AND SD, 17 JULY 1941, AND ENCLOSURES,
ON SEGREGATION AND TREATMENT OF CERTAIN CATEGORIES IN

PW CAMPS

Berlin, 17 July 1941

The Chief of the Security Police and the Security Service
21 B/41 top secret IV A I c

350 copies — 276th copy
[Stamp] Top secret
Operational Order No. 8

Subject: Directives for the Kommandos of the Chief of the

Security Police and the Security Service which
are to be detailed to the permanent PW camps
[Stalags] and transit camps [Dulags]

5

Appendices : 2 stapled enclosures, 1 and 2
1 loose enclosure*

I am enclosing directives for the purging [Saeuberung] of the
prisoner camps which contain Soviet Russians. These directives
have been formulated in agreement with the High Command of the
Armed Forces — Prisoner of War Department (see end. 1). The
commanders of the prisoner of war and transit camps have been
informed by the High Command of the Armed Forces.

I request that a Kommando consisting of one SS Leader and
4-6 men be detailed for the prisoner of war camps in that area.
If additional forces are needed to carry out the required tasks, I
am to be informed at once.

* * * * * * *

I draw attention, however, to the fact that the regional Gestapo
headquarters in the Reich, which are not concerned, are so under-
staffed, that further forces cannot be taken from them.

In order to facilitate the execution of the purge, a liaison officer
is to be sent to Brigadier General von Hindenburg, Commander in
Chief of the Prisoner of War Camps in the Army Service Com-
mand Area, East Prussia, in Koenigsberg, Prussia, and to Major
General Herrgott, Commander in Chief of the Prisoner of War
Camps in the Government General in Kielce.

The following are to be detailed at once as liaison officers :

a. Kriminalrat Schiffer, Regional Gestapo headquarters Stettin,
to Brigadier General von Hindenburg in Koenigsberg, Prussia and

b. Kriminalkommissar Raschwitz, with the commander of the
Security Police and of the SD in Krakow, to Major General Herr-
gott in Kielce.

The duty of those liaison officers is to ensure from time to time,
and especially in the initial stages of the action, that the opera-
tions of the Kommandos are carried out uniformly and in accord-
ance with these directives, and to assure smooth working relation-
ship with the offices of the Wehrmacht.

For the execution of the tasks assigned to the Kommandos in
the prisoner of war camps, I attach — as enclosure 2 — directives
for the Kommandos of the Chief of the Security Police and the
SD [Security Service] to be detailed to the permanent camps
of which the Supreme Command of the Armed Forces and

* The “1 loose enclosure” is a “List of PW camps in the area of Military District [Wehr-
kieis] I and the Government General”, dated 21 August, 1941, unsigned. It lists 8 and 6
camps, respectively, and contains the following comment: “The transit camps are, according
to the communication by the High Command of the Armed Forces, in the area of operations
and are from time to time moved nearer to the front as locally required. Their present loca-
tion may be found by inquiry at the Generalquartiermeister, department prisoners of war —
Telephone: Anna 757 (military wire) — Captain Sohn.”

6

therefore also the regional commanders and camp commanders
have been informed.

Before carrying out of executions [liquidations] , the leaders of
the Einsatzkommandos are to contact, in each case, the heads of
the competent regional Gestapo headquarters or the commanders
of the area competent for their camp, with regard to carrying
them out. The executions must not be carried out in the camp
itself or in its immediate neighborhood. They are not to be public
and are to be carried out as inconspicuously as possible.

With regard to the screening of the transit camps in the newly
occupied territories, separate instructions are being issued to the
chiefs of the Einsatzgruppen of the Security Police and the Se-
curity Service. The transit camps which lie in the areas of the
additional Einsatzkommandos detailed by the commanders of the
Security Police and the Security Service and of the State Police
offices, are to be screened by those.

♦ * sj: :ji sft * *

[Signed] Heydrich

Copy

Enclosure 1

[Stamp] Top Secret

Directives for the segregation of civilians and sus-
picious prisoners of war from the Eastern Campaign
in the prisoner of war camps in the occupied terri-
tory, in the operational zone, in the Government
General, and in the camps in the Reich

I. Intention

The armed forces must instantly rid itself of all those elements
among the prisoners of war who are to be regarded as carriers of
bolshevism. The special conditions of the Eastern Campaign there-
fore require extraordinary measures which must be carried out
free from bureaucratic and administrative influences, and with
pride in the responsibility of the task.

While the previous regulations and orders concerning prisoner
of war matters have been exclusively based upon military consid-
erations, the political aim must now be achieved to protect the
German people from Bolshevist agitators and to secure the occu-
pied territory quickly.

II. The road to the achievement of the ultimate goal

A. The inmates of the Russian camps are therefore, first of all,
to be separated inside the camps according to the following cate-
gories :

7

1. Civilians.

2. Soldiers (those too who are known to have donned civilian
clothes) .

3. Politically intolerable elements from 1 and 2.

4. Persons from 1 and 2, who appear to be especially reliable
politically and therefore capable of being used for employment in
the reconstruction of the occupied territories.

5. Racial groups within the categories of civilians and soldiers.

B. While the rough segregation according to A 1-5 will be

carried out by the camp authorities themselves, the Reich Leader
SS will commission the following units with the task of segregat-
ing the persons included in A 3 and 4 : “Einsatzkommandos of the
Security Police and Security Service”.

These units are directly subordinate to the chief of the Security
Police and the Security Service; they are specially trained for
their special task and carry out their measures and investigations
within the framework of the rules prevailing in the camp accord-
ing to the directives they receive from the Chief of the Security
Police and the Security Service. It is the duty of the camp com-
mandants, in particular that of their counterintelligence officers,
to collaborate closely with the Einsatzkommandos.

III. Further treatment of the segregated groups

A. Civilians

***** * *

B. Military personnel — The Asiatics are to be separated from
the soldiers of European appearance, in view of their possible use
in the Reich. Officers will often be liable to segregation as “sus-
picious elements”. On the other hand, in order to prevent the
officers from influencing the enlisted men, the two are to be sepa-
rated from each other forthwith. A special order will be issued
regarding the final assignment of military personnel. It must be
emphasized now that no Asiatics and persons speaking German
are to be considered for employment in Germany.

C. The Einsatzkommando of the Security Police and Security
Service will decide the fate of the “suspicious elements" (see II
A3) who are segregated.

Should any of the persons suspected turn out later to be un-
suspicious, they are to be returned to the rest of the civilians or
soldiers in the camp.

Requests from the Einsatzkommando for the handing over of
further persons will be granted.

8

D. Trustworthy persons are to be used to segregate the suspi-
cious ones (II A 3) and are also to be assigned to other work in the
camp administration. (Special reference is made to “Volga
Germans”.)

*******

[Stamp] Top Secret

Berlin, 17 July 1941

Enclosure 2
Office IV

Directives for the Kommandos of the Chief of the
Security Police and the Security Service [SD] to be
detailed to the Permanent PW Camps [Stalags]

The Kommandos are detailed in accordance with the agreement
between the chief of the Security Police and the Security Service
and the High Command of the Armed Forces, dated 16 July 1941
(see end. 1).

Within the framework of the camp regulations the Kommandos
operate independently by virtue of special authorization and in
accordance with the general directives issued to them. It goes
without saying that the Kommandos will keep the closest contact
with the camp commander and the counterintelligence officer at-
tached to him.

The task of the Kommandos is the political screening of all
inmates of the camp and the segregation and further treatment of

(a) elements intolerable for political, criminal, or other reasons,

(b) those persons who can be used in the reconstruction of the
occupied territories.

No aids can be made available for the Kommandos in the
performance of their task. The “German [Police] Register of
Wanted Persons”, the list compiled by the office for the investiga-
tion of domiciles and the “Special Register of Wanted Persons,
U.S.S.R.” will be of very little use in most cases; the “Special
Register of Wanted Persons, U.S.S.R.” is not sufficient because
only a small proportion of the Soviet Russians classified as dan-
gerous are listed therein.

The Kommandos, therefore, will have to rely on their own
specialized knowledge and ability, on their own clues and self-
acquired experiences. For this reason they will not be able to
start on their task until they have accumulated sufficient material.

For the time being and also later on, the Kommandos in per-
forming their tasks will utilize to the fullest possible extent the
experience which the camp commanders have acquired from ob-
servation of the prisoners and from interrogation of camp in-
mates.

9

Furthermore, the Kommandos must endeavor right at the start
to single out those elements among the prisoners which appear to
be reliable, regardless of whether or not they are Communists, so
as to utilize them for their information service inside the camp
and later on, if advisable, also in the occupied territories.

It must be possible through the employment of these confiden-
tial agents and by making use of any other means available to
single out, as a first step, all those elements among the prisoners
which are to be segregated. By short interrogation of the singled-
out persons, and possibly by questioning other prisoners, the
Kommandos will be in a position to make the final decision in
each individual case.

The statement of one confidential agent is as such not sufficient
proof to classify a camp inmate as suspicious. Somehow or other,
a confirmation should be obtained, if possible.

Above all, it is necessary to find out all important officials of
the state and the party, in particular — professional revolution-
aries; the officials of the Comintern; all influential party officials
of the Communist Party of the Soviet Union and its subdivisions
in the central committees, the regional and district committees,
all People's Commissars and their deputies, and all former political
commissars in the Red Army; the leading personalities on the
central and intermediate level of the state administration; the
leading personalities of the economy; the Soviet Russian intel-
lectuals ; all Jews ; and all persons found to be agitators or fanati-
cal Communists.

As already mentioned, it is no less important to sort out those
persons who may be used for the conquered Russian territories.

Finally, it will be necessary to sort out those persons who will
be wanted later for the conclusion of further investigations, no
matter whether of a political nature or otherwise, and for the
clarification of questions of general interest. This category in-
cludes in particular all higher state and party officials who are
able to furnish information regarding the measures and working
methods of the Soviet Russian state, the Communist Party or the
Comintern, owing to their position and their knowledge.

Before any final decision is taken, racial membership should be
considered.

The leader of the Einsatzkommando will transmit a weekly
brief report to the Reich Security Main Office by teletype or ex-
press letter.

*******

On the strength of these operational reports, the Reich Security
Main Office will communicate further measures to be taken at the
earliest possible moment.

10

In order to carry out successively the measures indicated in
these instructions, the Kommandos will request the camp authori-
ties to surrender the prisoners in question.

Camp authorities have been instructed by the High Command
of the Armed Forces to comply with such requests (see end. 1).

Executions must not be carried out in or near the camp. If the
camps are in the Government General, close to the frontier,
prisoners are to be moved to former Soviet territory, if possible,
for special treatment.

In the event of executions being necessary for reasons of camp
discipline, the leader of the Einsatzkommando has to get in touch
with the camp commander for this purpose.

The Kommandos are required to keep records of the completed
special treatments.

* * * * * * *

Exemplary conduct on and off duty, smoothest possible coopera-
tion with the camp commandants, careful scrutiny is enjoined on
the leaders of the Einsatzkommandos and all members.

The members of the Einsatzkommandos have at all times to
bear in mind the special importance of the tasks set them.

PARTIAL TRANSLATION OF DOCUMENT NO-3417
PROSECUTION EXHIBIT 363

LETTER OF 26 SEPTEMBER 1941, FROM HEYDRICH'S OFFICE, ENCLOS-
ING LETTER OF TRANSMITTAL, SIGNED BY DEFENDANT REINECKE,
AND DIRECTIVES FOR THE TREATMENT OF SOVIET PRISONERS OF
WAR, 8 SEPTEMBER 1941

The Chief of the Security Police and the Security Service
Diary No. 539 B/41 secret IV A 1 c

Berlin, 26 September 1941

Subject: Directives for the Kommandos of the Chief of the

Security Police and the Security Service to be as-
signed to permanent PW camps and transit PW
camps

Reference: Decree of 17 July, 21 July, and 12 September 1941,
Diary No. 21 B-41 Top Secret Operational Orders
Nos. 8 and 9

Enclosure: 1 stapled enclosure

As a supplement to my afore-mentioned decrees I herewith en-
close for your information the pertinent regulations issued by the
High Command of the Armed Forces concerning the treatment of
Soviet Russian PW’s, dated 8 September 1941, file Nos. 2 f 24

893964 — 51 2

11

November, General Armed Forces Office PW’s, (I) No. 3058/41
secret. The extra copies attached are for the leaders of the Ein-
satzkommandos.

In case difficulties of any kind should occur during the purging
of the camps accommodating Soviet Russian PW’s as well as the
labor detachments, I would advise you to refer the competent
armed forces authorities to the directives laid down in conjunction
with the OKW, as well as to the order of the OKW, dated 8 Sep-
tember 1941, which, according to the distribution list, was sent
to all the military district commands.

As Deputy
Signed: MUELLER

High Command of the Armed Forces

File No. 2 f 24 November, General Armed Forces Office/PW’s (I)
No. 3058/41 secret
2 enclosures

Berlin-Schoeneberg, 8 September 1941
Badenschestr. 51

Secret Registered

Subject: Regulations for the treatment of Soviet PW’s.

Reference: l.OKW/PW’s 26/41 top secret, 16 June 1941 (only to
the commanders of PW’s in Military District I and
Govt. Gen.).

2.0KW/PW’s 2114/41 secret, of 26 June 1941.
3.0KW/PW’s 2041/41 secret, of 17 July 1941.
4.0KW/PW’s 15 No. 5015/41, of 2 August 1941.
Enclosed please find a summary and/or supplement to the
directives hitherto issued with various orders concerning the
treatment of Soviet PW’s. Allowances have been made for the
directives already issued for the operational area by the High
Command of the Army/Generalquartiermeister with this order,
the orders cited in reference, unless especially referred to in the
enclosure, are cancelled.

* * * * * * *
For the Chief of the OKW

By order
S igned: Reinecke

12

Enclosure to Diary No. 3058/41 secret

8 September 1941

Secret

Regulations for the treatment of Soviet PW’s in all
prisoner of war camps

I. Treatment of Soviet PW’s in general — Bolshevism is the mortal
enemy of National Socialist Germany. For the first time, the
German soldier faces an enemy who has not merely been trained
as a soldier but who has also undergone Bolshevist political train-
ing calculated to destroy nations. The fight against national
socialism has become part of his nature. He carries out this fight
with all the means at his disposal — sabotage, seditious propa-
ganda, arson, and murder. For this reason, the Russian soldier
loses all claims to treatment as an honorable soldier and according
to the Geneva Convention.

It is in accordance, therefore, with the authority and dignity
of the German Armed Forces, for every German soldier to keep
a strict distance as far as Russian PW’s are concerned. The atti-
tude to be maintained towards them must be correct, though
frigid. Anyone found to be adopting an indulgent or even a
friendly attitude is to be punished severely. The feeling of pride
and superiority of the German soldier who has been detailed to
guard Soviet PW’s must be evident at all times even to the public.
Ruthless and energetic action is, therefore, to be ordered at the
least sign of insubordination, especially toward Bolshevist insti-
gators. Insubordination, active or passive resistance, must be
immediately stamped out by force of arms (bayonets, rifle butts,
and firearms). The regulations concerning the use of arms by
members of the armed forces are only partly applicable, since
these were meant for cases where it was necessary to interfere
under generally peaceful conditions. As far as the Soviet PW’s
are concerned, the strict use of arms is necessary alone for disci-
plinary reasons. Whoever does not use arms or does not use them
energetically enough for the enforcement of an order, is liable to
punishment. Escaping PW’s are to be fired on immediately, with-
out previous warning. Warning shots are not to be fired at all.
The regulations hitherto in force, in particular Army Manual
38/11, page 13, etc., are cancelled to this extent. On the other
hand, all arbitrary action is prohibited. Those PW’s who are
obedient and willing to work will be treated in a correct manner.
However, at no time should one be off guard when dealing with
a PW, or forget to adopt a suspicious attitude towards him. As a
rule, the use of arms against Soviet PW’s is legal. Any contact
between the civilian population and the PW’s is to be prevented.
This applies in particular to the occupied territory. The segre-

13

gation of the PW officers and noncommissioned officers from the
enlisted men already carried out by the army in the field, is also
to be strictly adhered to in the areas of the armed forces com-
manders and in the Reich. Any communication between these two
groups, even by signs, must be made impossible.

Those Soviet PW’s suitable for the task are to be formed into
a camp police force, both in the camps and in larger work details.
They will be appointed by the [camp] commandant to maintain
order and discipline. In order to carry out their tasks effectively,
the camp police is permitted to carry sticks, whips, or similar
weapons within the wire enclosure. German soldiers are expressly
forbidden to use any of the afore-mentioned weapons. By the
granting of better food, treatment, and billets, it is intended to
create an executive organization in the camp which will greatly
alleviate the tasks of the German guard personnel.

II. Treatment to be accorded to members of different ethnic
groups

III. Segregation of civilians and PW’s from the Eastern Cam-
paign who are politically undesirable

1. Intention — The armed forces must instantly rid itself of all
those elements among the PW’s who are to be regarded as carriers
of bolshevism. The special conditions of the Eastern Campaign
therefore require extraordinary measures which must be carried
out free from bureaucratic and administrative influences and with
pride in the responsibility of the task.

2. The road to the achievement of the ultimate goal

A. In addition to the segregation in the PW camps, according
to nationalities, see paragraph II, the PW’s (also members of
ethnic groups) as well as the civilians in the camps are to be
segregated as follows:

a. Politically undesirable persons

b. Politically harmless persons

c. Persons especially reliable politically (who can be used for
the reconstruction of the occupied territories)

B. While segregation according to nationalities, officers, etc.,
will be carried out by the camp authorities themselves, the Reich
Leader SS will commission the following units with the task of
segregating the PW’s in respect to their political ideology —
Einsatzkommandos of the Security Police and the Security Service.

These units are directly subordinate to the Chief of the Security
Police and the Security Service. They are specially trained for
their special task and carry out their measures and investigations
within the framework of the rules prevailing in the camp, accord-

14

ing to the directives they receive from him. It is the duty of the
camp commandants, in particular that of their counterintelligence
officers, to collaborate closely with the Einsatzkommandos.

3. Further treatment of the groups segregated according to
figure 2.

A. Military personnel — The Einsatzkommando of the Security
Police and Security Service will decide the fate of the “politically
undesirable elements” who are segregated.

Should any of the persons suspected turn out later to be unsus-
picious, they are to be returned to the rest of PW’s in the camp.
Requests from the Einsatzkommando for the handing over of
further persons will be granted. Officers will often be liable to
segregation as “politically undesirable persons”. Those soldiers
caught in civilian clothes will also be counted as military persons.
* * * * * * *

V. Concluding remarks — The commanders of PW’s are to be
made personally responsible for the strict observance of the afore-
mentioned regulations by their subordinate units. This task must
under no circumstances be interrupted or impaired, even by a
change of offices. Therefore, all new offices and units must on
arrival and commitment be thoroughly instructed as to the con-
text of these regulations.

****** *

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
HANS FRUECHTE*

DIRECT EXAMINATION

Mr. Hochwald: Witness, will you please state your name for
the record?

WITNESS Hans Fruechte : My name is Hans Fruechte, Doctor
of Medicine.

Q. Are you a German citizen, Witness?

A. Yes, sir. I am German.

Q. Did you serve in the German Army during the last war?

A. From 1939, until the end of the war I served in the German
armed forces.

Q. Did you ever serve in the Eastern theater of war?

A. Since July 1941, we were committed in the Eastern theater
of war.

Q. What was your rank at that time?

A. At that time I was an assistant physician.

* Complete testimony is recorded in mimeographed transcript, 3 August 1948, pp. 9097-9134.

15

Q. This is if I understand you correctly, a rank of a second
lieutenant, is that correct?

A. Second lieutenant.

Q. In what capacity did you serve when you came to the East?

A. At that time I was an auxiliary medical officer in the Tran-
sient PW Camp 160.

Q. How long were you in this position?

A. From May 1940, until June 1942.

Q. To whom was this camp subordinate?

A. When we marched into Russia we were subordinate first of
all to the Sixth Army, later on to the Rear Area of Army Group
South.

Q. Can you tell the Tribunal when you became subordinate to
the Rear Area of Army Group South?

A. I cannot give you the exact day, but I can give you the
month at any rate. We were permanently stationed in Russia on
17 September 1941. At the very latest, therefore, during the
month of September we were made subordinate to the Rear Area
of Army Group South. I am referring to the year 1941.

Q. Do you know whether certain classes and races of prisoners
of war were segregated in the Transient PW Camp 160 when you
served there?

A. Yes. From the very beginning in Russia the Jews, and at
first the Mongolian and other Asiatic races, were segregated.
Altogether we had three camps in Russia. In the first camp the
Jews and Mongolians were still segregated. Later on the Jews
and Mongolians were segregated but were kept separately.

Q. Do you know whether, if at all, the camps were searched for
Bolshevik commissars?

A. To the best of my knowledge there was a directive to the
effect that prisoners of war were to be screened for the presence
of commissars and Politruks. In actual practice it only happened
very rarely — I only remember two cases — since in most cases, the
commissars had been liquidated before the prisoners arrived in
the camp. I only know of two cases, one in the Kirovograd camp
where a man who was charged with being a Politruk was interro-
gated by a judicial officer and by the commandant. The second
case which I recall occurred in the main camp Khorol where a
sergeant of the [Secret] Field Police, when a column of prisoners
arrived at the camp, immediately segregated one commissar and
shot him on the spot. He wanted him shot right in the camp. I
happened to be in the camp at that time, but I told him that no-
body must be shot in the camp. Therefore, he took him away, had
him undressed, and shot at the next corner.

* Jk * * * * 3k

16

Q. You have testified to these two cases, Witness. Can you tell
the Tribunal to whom the Transient PW Camp 160 was at that
time subordinate, at the time of these two cases?

A. I want to refer back to the other matter. I don’t believe I
was understood correctly. I didn’t say then that only on two
occasions were searches carried out. Of course, searches were
carried out always, but only in two cases was something actually
discovered. It was a matter of course for the German guards that
every incoming transport of prisoners of war was screened for
the presence of political functionaries ; but only on two instances
was something actually discovered, as I said, because in most cases
these people had been liquidated prior to the transport reaching
the camp. I wanted to add this statement to my last answer.
*******

Q. Let’s return now to the segregation. Can you tell the Tri-
bunal what happened to the Jews who w'ere segregated?

A. At first we didn’t know at the time when we entered Russia
what was to happen to these people. In my first camp I assumed
that these people were segregated, that they were to be put into
separate camps, as the Jews were put into ghettos in Poland. But
even during the course of the first week we learned from the
soldiers who had accompanied transports to Zhitomir, that in
Zhitomir already at the beginning of August 1941, all incoming
Jews who arrived together with the prisoner transport had been
shot. The Jews whom we kept later separated in the camps, were,
without exception, shot by the Security Service Kommandos that
arrived later.

Q. Do you recall whether at any time Security Service Kom-
mandos entered the Transient Camp 160?

A. Transient Camp 160 was entered by Security Service Kom-
mandos approximately on 12 May 1942. The then commandant
of the camp told us officers frankly that he was directed to give
the Security Service every freedom of action within the camp.
The Jews were not interrogated or examined in any way. There
were a number of other persons, however, detained because they
were suspect or were considered undesirable elements, and these
suspected persons were very briefly interrogated by the Security
Service. Then on 15 May 1942, all the Jews in the camp and all
other undesirable persons were shot by the Security Service. They
were taken away from the camp to a place where they were shot.

Q. Was that the only time when the Security Service entered
the Transient Camp 160?

A. Yes. While I was there the Security Service was only in
Transient Camp 160 on this one occasion.

17

Q. Was it known to you, Witness, what happened on the trans-
ports which left or came to the Transient Camp 160, what hap-
pened to the people who were unable to march?
***** * *

A. I can only remember one instance —

Presiding Judge Young: Well —

A. — in which I know positively that prisoners of war were
shot on the march ; this march was the one that took place in the
middle of October. I cannot recall the exact date but it was di-
rected from Khorol to Kremenchug. The Khorol camp was over-
crowded and the order came to transfer about 20,000 prisoners
of war on foot across country to Kremenchug. I, as a camp phy-
sician, was ordered by the camp management to make notes when
the prisoners filed through the gates of the camp and to segregate
the prisoners who looked weak and exhausted. I did this, and
segregated a number of people whom I could see would not be able
physically to withstand the strain of the march. Later on soldiers
who either participated in the march or others who passed the
stretch of road between Kremenchug and Khorol on vehicles said
that all the people who were exhausted —

Dr. Tipp (counsel for defendant von Roques) : If Your Honor
please, I object to any further testimony of this witness, and I
move that the testimony so far rendered be stricken from the
record. The witness just said that soldiers told him certain things.
What he is going to state now is, therefore, clearly only hearsay.
The witness can testify as to what he noticed himself, but he can-
not relate here before this Court what any soldiers told him at
any time. That is not proper evidence which is credible in this
trial. Therefore, I move that the testimony so far rendered by
this witness be stricken from the record.

Mr. Hochwald: If the Tribunal please, this very remark of
the witness shows clearly what type the evidence is. Therefore
I do not think it is necessary to strike.

Presiding Judge Young: It is not necessarily objectionable
because it is hearsay. We will have the circumstances under
which it is said. It goes to the weight of it. Objection overruled,
Mr. Hochwald: Will you finish your answer, please?

Witness Hans Fruechte : I said that shortly after the march
had taken place, we the personnel of the camp were informed by
soldiers, some of whom had participated in the march as escorts,
or by other soldiers who had passed the stretch of road where the
march took place, that those people who couldn’t march any fur-
ther were shot. They also told us that the corpses were left at the
roadside and that the whole stretch of road up to Khorol was
marked by the corpses.

18

Q. Can you tell the Tribunal why you were ordered to segregate
the weak people?

A. So that only those people participated in the march who
would be able to stand the strain of the march.

Q. Who gave this order to you, please?

A. The camp commandant.

Mr. Hochwald: I have no further questions to this witness.

Presiding Judge Young: Cross-examination?

CROSS-EX AMIN A TION

*******

DR. Tipp: Witness, you said you knew that in the prisoner of
war camps a certain subdivision was carried out. You mentioned
Russians, Jews, and Asiatics; I think.

Witness Hans Fruechte: Yes.

Q. Do you know or can you tell us what the purpose of this
subdivision was?

A. I stated that in my earlier testimony. At first the prisoners
of war were segregated into Russians and Ukrainians on the one
hand, and Jews and Asiatics on the other hand. I, as well as the
other officers of the camp, was of the opinion that this was merely
done so that the Jews and Asiatics could be accommodated in
separate camps where they would be subjected to a particularly
severe treatment. However, only a week later, all of us knew
that this was not the case, but that instead these people were
segregated because the Jews were to be shot. I also stated —

Q. Excuse me for interrupting you, Witness, you just said, “all
of us knew.” May I now ask you to tell me where you derive your
knowledge from?

A. I have already stated that in my earlier testimony. The
soldiers who accompanied the transports as escorts to Zhitomir,
where the first shootings took place, came back and told us that all
the Jews had been shot there. They had seen it themselves.

Q. If I understand you correctly, Witness, you now relate re-
ports or descriptions from third persons.

A. Yes. In this particular case ; but I can mention a report from
Khorol where I myself heard that Jews were actually shot five
hundred meters away from my house.

Q. Perhaps we can discuss this later, Witness. At this point 1
want you to tell us whether you recall how long the transient camp
was subordinate to the Sixth Army?

A. I cannot give you the exact date. Until we came to Khorol
we were intermittently subordinated to various headquarters be-
cause we passed through various areas. I happen to know that
in Kirovograd we were subordinate to the Sixth Army because I

19

happened to talk to the medical officer in charge there myself.
I know that later from reports which I sent off from my head-
quarters in Khorol that I addressed numerous medical reports to
the medical officer in charge with the Rear Area of Army Group
South.

Q. But you cannot state when these individual shootings which
you mentioned actually took place?

A. On the contrary, I can tell you almost exactly. The first
shooting, which I did not witness myself, was one of the first
shootings which came to my attention at all. It took place during
the first days of August 1941. The second one took place in
Khorol, and that occurred towards the end of October, or begin-
ning of November 1941. And the third shooting of which I have
exact knowledge and which I, so to speak experienced myself,
occurred 500 meters away from my house, that took place on
15 May 1942. There I heard the shots, even if I was not an eye-
witness of the shooting.

❖ * * * * * *

Q. Thank you. I am interested in one specific factor here. What
was your rank at that time?

A. Assistant physician.

Q. You were an officer then?

A. Yes.

Q. You told us that a member of the field police wanted to shoot
this man in front of your own eyes?

A. Yes. That is right.

Q. What was the rank of this man?

A. Sergeant.

Q. He held a lower rank than you?

A. Yes.

Q. You told us that a member of the [Secret] Field Police
wanted to shoot this man in front of your own eyes?

A. Nothing.

Q. Why didn’t you do anything?

A. Because it would have been ridiculous.

Q. You think it is ridiculous to prevent a man from being shot?
Then I have no further questions on this point.

Now, Witness, one other question about the shooting of Jews.
You said that you yourself were an eyewitness or rather you
heard, if you did not see it, when Jews were shot in the camp;
perhaps in order to make it clear you can tell us once again when
that happened?

A. On 15 May 1942.

20

Q. Do you know whether on 15 May 1942, the Khorol camp was
still in the area of the Army Group Rear Area?

A. Yes. I do know that.

Q. You know that for certain?

A. Yes. At any rate, I know it on the basis of the reports which
I sent out, and which I am sure I addressed at that time to the
Rear Area of Army Group South.

Q. Did you make a report concerning these shootings of Jews,
Witness?

A. I?

Q. Yes, you.

A. No.

Q. Why not?

A. To whom should I have reported? To whom for instance?

Q. To whatever agency you usually reported.

A. To the second medical officer?

Q. Certainly, if he was the one.

A. How could I make a report on something that had been
ordered ? I couldn’t report that the prisoners received their lunch
yesterday, either.

Q. This matter is too serious to joke about.

A. I am not joking.

Q. It seemed to me as if you were joking.

A. Well, I can’t report anything that is a matter of course.

Q. You think it is a matter of course that prisoners are shot
practically before your eyes?

A. It was a matter of course in those days. For every officer
and for every enlisted man of the German armed forces at that
time, it was an absolute matter of course that every Jew was shot.

Q. Witness, did you ever see an order which ordered the shoot-
ing of Jews?

A. No.

Q. Did you personally ever learn that any one of your superior
officers ordered Jews to be shot?

A. No.

Q. From where do you derive the conclusion then that for every
officer and for every enlisted man it was a matter of course that
Jews were shot?

A. Because every officer and every enlisted man knew it.

Q. I beg your pardon, Witness. You can testify to your own
personal knowledge; it is your own business what you know and
what you don’t know, but how do you know what millions of
German soldiers knew on the eastern front, that is a mystery
to me.

21

Mr. Hochwald: If Your Honor please. I object to this way
of questioning. This is merely argumentation with the witness.
This is a speech.

Presiding Judge Young: You don’t need to make him a speech,
if you want to ask him any more questions.

Mr. Hochwald: I think it is absolutely improper.

Presiding Judge Young: Ask him questions.

Dr. Tipp: Witness, how many officers and men of the German
armed forces were committed on the eastern front?

Witness Hans Fruechte : I don’t know.

Q. Approximately?

A. I have no idea.

Q. Perhaps you know something else then. According to per-
centage, with how many officers or enlisted men did you yourself
talk personally?

A. With 200 officers and thousands of enlisted men.

Q. You talked to 200 officers and thousands of enlisted men?

A. Yes.

Q. And how long were you on the eastern front?

A. Throughout the whole Eastern Campaign.

Q. And all these officers confirmed to you that they knew it?

A. Yes.

Q. All of them?

A. Yes.

Q. Witness, you are under oath here, you know that?

A. Yes.

Q. And you said that you asked all these 200 officers and all
these thousands of enlisted men, “What do you know about shoot-
ings of Jews”, is that what you contend? Yes or no, Witness.

A. This subject cropped up in almost every conversation which
lasted longer than 3 minutes. And I did not meet a single person
who said : “That is completely new to me. I don’t know anything
about it. What are you telling me?” It was an accomplished fact
for everybody.

*******

Q. Now, Witness, we will revert to the proper topic of our
examination ; that is, the topic for which you have been called here
by the prosecution, to wit, the shootings of prisoners of war unfit
to march. Did you from your own knowledge obtain cognizance
that prisoners unable to march were shot?

A. I was never an eyewitness, as I stated.

Q. You stated, I belieVe, that you had received the order from
the camp commandant to pick out the people unable to march from
the marching columns which were about to leave.

A. Yes.

22

Q. Could you infer from this order, Witness, that the armed
forces, if I may put it this way, intended to shoot people unfit for
marching while they were en route?

A. Yes. I assumed so, —

Q. I believe we misunderstood each other, Witness, you stated
that your camp commandant issued an order to you to segregate
the people unfit for marching. What happened to those people
unfit for marching whom you segregated?

A. They remained in the camp.

Q. Were they then shot in the camp?

A. No.

* * * * * * *

Q. Thus, if I understand you correctly, the shootings about
which you heard occurred allegedly with that marching column
which you had previously examined in order to segregate the
people unfit for marching?

A. Yes.

Q. Now, did you carry out the examination thoroughly in ac-
cordance with your medical duties?

A. As thoroughly as was possible. As a camp physician, even
if I have 50 Russian assistant physicians, I can’t examine 10,000
Russians in half an hour. I received the order at six o’clock in
the morning to go to the camp to watch as the prisoners were
driven through the camp gate and to sort out those who were
feeble. I went out and did so, and then they marched off.

Q. Were the 50 assistant Russian physicians you mentioned also
consulted during this examination?

A. No.

Q. Why not?

A. Because a column cannot pass 50 persons, where everybody
sorts out people at his own discretion.

Q. Witness, did you have the feeling or the view as the marching
column filed past that you had sorted out the people unfit for
marching?

A. It is hard to say because I didn’t know what the require-
ments were regarding these people. I didn’t know anything about
them. I knew they were going to Kremenchug. That was 90
kilometers away. I didn’t know how many days their march
would take or if their food or their billeting would be taken care
of on the march. I sorted out those people who seemed to be the
weakest and who seemed to be debilitated. This I did not do alone
but with the help of two, three, or five Russian doctors and Ger-
man medical orderlies.

23

Q. Didn’t you, as a physician, bring it to the attention of the
camp commandant that this examination of people unfit for
marching couldn’t be carried out by you in such a short time?

A. I can’t recall. It is possible that I told the commandant but
I can’t swear to it.

Q. Thus, you don’t know how the camp commandant reacted,
do you?

A. No.

Q. May I then ask you, Witness, regarding the shootings, — did
you ever talk about it with the camp commandant?

A. Yes. Yes, I did.

Q. What did he tell you ?

A. He personally was against the shootings, but he tolerated
them as an unalterable fact. I attempted to save a few Jewish
doctors from the shooting and said, “There are a few doctors
whom I need desperately.” Then I told him, “There are some
half-Jews there; they needn’t be shot.” But he refused and said
verbatim, “We won’t start on this business. They will soon be
shot, sooner or later, whatever happens. It is better we shoot
them now. Let’s have them shot now.” That was his literal
statement, and if you attach importance to this statement, an-
other doctor asked the camp commandant at the same time to save
a few Jewish doctors, and he was refused in the same conversa-
tion ; this doctor is now in Munich.

Q. You don’t know from whom this camp commandant received
the order to grant the Security Service access to the camp, do you ?

A. No.

* ***** *

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS

PAUL OHLER*

DIRECT EXAMINATION

Mr. Dobbs: Witness, your name is Paul Ohler, is that correct?

Witness Paul Ohler : Yes. That is correct.

Q. Are you a German citizen?

A. Yes.

Q. Were you an SS lieutenant colonel and criminal inspector of
the Nuernberg Gestapo during the year 1941?

A. No. I was an SS first lieutenant and inspector of the Ges-
tapo in 1941.

Q. Was the Gestapo regional headquarters at Nuernberg sub-
ordinate to the Reich Security Main Office in Berlin?

A. Yes, officially.

* Complete testimony is recorded in mimeographed transcript, 13 February 1948, pp. 683-592.

24

Q. Who was the head of the Reich Security Main Office in Berlin
in 1941?

A. That was SS Lieutenant General Heydrich.

Q. Who was the Gestapo chief in Berlin during that period of
time in 1941?

A. That was Heydrich.

Q. Mr. Ohler, in the course of your official duties as criminal
inspector of the Nuernberg Gestapo, did you ever hear or learn
that Gestapo men were to carry out assignments at prisoner of
war camps?

A. Yes. On assignment from the Chief of the Security Police
and the Security Service, we had to set up a Kommando for the
prisoner of war camp in Hammelburg.

Q. Mr. Ohler, can you tell whether orders were given from
Berlin, activating such Kommandos?

A. The order came from the Reich Security Main Office, under
the name of the Chief of the Security Police and Security Service.

Q. Can you describe for us the nature of the assignment for
which this Kommando was activated?

A. Yes. It was the sorting out of Russian prisoners of war,
commissars and Politruks.

Q. Witness, did you yourself receive an order in connection with
such an assignment?

A. At the beginning of November 1941, my superior gave me
the order to take over the Kommando which was already existing
in Hammelburg. I had to relieve my predecessor.

Q. How many men worked within your particular Kommando?

A. Four officials.

Q. Did your group have any special name?

A. It was designated as, “Einsatzkommando attached to the
officers’ PW camp, Hammelburg.”

Q. Did your Einsatzkommando screen prisoners of war at
Hammelburg?

A. Yes. They were screened.

Q. Can you tell me whether other Einsatzkommandos, to your
knowledge, were activated for the purpose of screening other
prisoner of war camps?

A. Yes. There was a second Kommando for the main PW
camps — main PW camp Nuernberg and main PW camp Hammel-
burg.

Q. Was the camp at which your Kommando worked, a main
PW camp?

A. No. That was an officers’ camp.

Q. That was an officers’ camp. Can you tell me how many
prisoners of war were screened by your particular Kommando?

25

A. Well. I do not know that. I do not know how many prison-
ers of war were in the officers’ camp because people kept coming in.

Q. Well, can you give me a rough approximation of the number
of prisoners screened by your Kommando? Was it ten, five hun-
dred, a thousand?

A. Well, there were several thousands. I should think proba-
bly — well, of course I cannot be bound to this figure at all — but
1 should think it was probably about 15,000 men.

Q. But did your Kommando screen that many officers ?

A. Yes. They were all officers in the officers’ camp.

*******

Q. Mr. Ohler, will you please describe for us the procedure?

A. Yes. As far as I knew, the people contacted the camp com-
mandant. They reported there and then they mentioned the tasks
they had to fulfill and then, in agreement with the camp com-
mandant or with officers of the armed forces, they selected con-
fidential agents in the camp, who could be called in to carry out
the tasks.

Q. Who were the confidential agents?

A. Well, they were people chosen from the prisoners of war
of the officers’ camp itself.

Q. And what was the work that these confidential agents did?

A. The confidential agents then informed the officials who,
among the prisoners of war, were commissars, or Politruks, etc.

Q. When you say they “informed the officials” do you mean
officials attached to your Einsatzkommando, or were there other
people that they informed as well at that time ?

A. No. There weren’t any other officials there. May I continue ?

Q. Yes, yes.

A. The prisoners of war who were then mentioned by name
were taken out and interrogated and witnesses were also interro-
gated. If the man concerned had denied or disputed that he was
a commissar, then at least two witnesses had to be heard to con-
firm it. If this was not the case — I mean if there were no two
witnesses to confirm this, then the prisoner of war concerned still
remained unmolested.

Q. Did you have any special technique for identifying any
political commissar or a Politruk?

A. No. It was only possible to do all this through the confiden-
tial agents or else prisoners of war themselves came and reported
such people on their own initiative.

Q. Can you tell me whether any one of the camp personnel
assisted you in any way in connection with the screening of these
prisoners of war?

A. No. The camp personnel did not participate.

26

Q. Whom did you contact when you went to a camp and told
them that you were there to carry out an assignment?

A. I have already stated that was all done before T arrived in
Hammelburg.

Q. You mean at a time when some other man had been in charge
of this particular Einsatzkommando ?

A. Yes. That is what I mean.

Q. Did you at any time have any business connection with refer-
ence to the Einsatzkommando activity with the intelligence officer
of the camp?

A. No, never.

Q. What procedure was necessary to release a selected prisoner
from the prisoner of war camp jurisdiction?

A. Well, the prisoners of war who were sorted out were then
segregated from the others — that means they were placed in a
separate room. They continued to be fed by the armed forces in
exactly the same way as the other prisoners of war. When the
required number of people were sorted out to be formed into a
transport, the men were reported to the Chief of the Security
Police and the Security Service, and from there came the instruc-
tion for the people to be transferred to Dachau concentration
camp. A list of the people was sent, in writing, to the camp com-
mandant, and the camp commandant was requested to release the
people as prisoners of war and to transfer them to the Gestapo.

Q. Witness, at any time when you were at camp Hammelburg,
did you see an OKW order in connection with the screening of
these prisoners of war?

A. No.

Q. When these prisoners of war were transferred over to you —
I withdraw that question.

Mr. Ohler, you say that you replaced a man who formerly was
in charge of this Kommando. When you replaced him, did you
just go up to the camp — just walk in, or did you introduce your-
self to anyone at the camp ?

A. I reported to the camp commandant, at that time, that I had
the order from my superior agency to take over the Kommando.

Q. Did the camp commander object to your going to the camp?

A. No. We did not go into the actual prisoner of war camp
itself.

Q. Where did you go?

A. I beg your pardon?

Q. Where did you go?

A. I went into the commander’s office, that is on the troop train-
ing ground. The prisoner of war camp was separate and was
surrounded by barbed wire, etc.

8939B4— 51 3

27

Q. Well, how did you screen these prisoners of war if you did
not go into the prisoner of war camp?

A. The confidential agents, etc., made their reports in writing,
and the reports were translated and then given to us.

Q. Who actually handed you these reports — the informing peo-
ple? Or were they handed to you by someone else?

A. Well, they were people from the armed forces.

Q. When these prisoners of war were screened by you and re-
leased by the prisoner of war camp to you, what then happened?

A. Then the people were taken to the Hammelburg railroad
station and there they were taken over by the Gestapo.

Q. Who escorted the prisoners of war from the Hammelburg
camp to the Hammelburg railroad station?

A. That was matter for the armed forces.

Q. What happened at the railroad station at Hammelburg?

A. In the Hammelburg railroad station the people were taken
over from us; then they were taken into railroad cars; two men
were always chained together with a fine chain, in order to prevent
escape. The carriages were then closed and locked, and they were
sent to Dachau as quickly as possible.

Q. What sort of cars were these ?

A. They were freight trains.

Q. You mean freight cars?

A. Yes. They were large freight cars — closed cars.

Q. Can you tell me how many prisoners of war would be allotted
to each one of these cars?

A. About 60 to 80 men.

Q. And then I assume these trains were sent down to Dachau ;
is that correct?

A. I beg your pardon?

Q. And then I assume these trains were sent down to Dachau ;
is that right?

A. Yes. They went to Dachau.

Q. Witness, there is one question to which I want to go back
a bit. Can you tell me what sort of clothes these prisoners wore
when they left the camp Hammelburg?

A. Well they had their PW clothing, that is, their usual uni-
forms. I think these were very few. They had poor uniforms,
and some of them had substitute clothing on.

Q. Were you present at the Dachau station when such a trans-
port would arrive?

A. Yes. I was there a few times. I don’t know if it was once,
or two or three times. I don’t know exactly any more.

Q. What happened at that time?

A. When they arrived in Dachau the people were handed over

28

to a Kommando leader of the SS. They were fetched by cars at
the station and then they were taken from there to the shooting
range and there they were shot on orders from the Chief of the
Security Police.

Q. Were you ever present at such shootings?

A. Yes. I had to be present a few times.

Q. Can you describe what took place at this shooting procedure ?

A. Well, the people had to undress, and then five men at a time
were taken to the shooting range, and then they were shot by an
SS Kommando.

Q. Witness, will you repeat again for me the number of trans-
ports that were sent down to Dachau by your particular Einsatz-
kommando?

A. The number of the transports? I cannot possibly say.

Q. Can you give me an approximation?

A. I should think that about 500 men were sent from the offi-
cers’ camp to Dachau.

*******

CROSS-EXAMINATION

Dr. Surholt (counsel for the defendant Reinecke) : Witness,
on whose orders did you act? From whom did they originate?

Witness Paul Ohler: The orders came from the Chief of the
Security Police and the SD; that is, I received the orders from
my superior, that is, orally.

Q. Also, the orders for transfer from the PW camp to the con-
centration camp?

A. Yes. Everything came from the Chief of the Security Police
and the SD and was carried out in accordance with directions.

Q. When these measures were carried out, did you receive
orders from the camp commandant?

A. No.

Dr. Surholt : Thank you. I have no further questions.

Presiding Judge Young: Any further cross-examination ? Any
redirect?

Mr. Dobbs: Just one question, Your Honor.

REDIRECT EXAMINATION

Mr. Dobbs : Mr. Ohler, was the prisoner of war camp Hammel-
burg under the jurisdiction of the army or of the SS?

A. That was under the jurisdiction of the Wehrmacht.

Mr. Dobbs : I have no further questions.

Presiding Judge Young: Witness may be excused.

* * * * * * *

29

PARTIAL TRANSLATION OF DOCUMENT NOKW-I6I5
PROSECUTION EXHIBIT 257*

TELETYPE FROM 24th DIVISION TO COMMANDER REAR AREA ARMY
GROUP SOUTH, 15 OCTOBER 1941, INITIALED BY VON ROQUES,
CONCERNING EVACUATION OF PW'S

Signal Office Number Sent

To be

CinC Rear Area 273

To Day Time By Register

Army Group South

Filled

1st Radio Squad

[Initials]

1st Co., 221st

vR [von Roques]

Out By

Signal Bn.

Fr. [Handwritten] la Pki

* * *

Signal

Remarks:

Certificate of delivery

Office

Receipted for or Received :

By Day Time By
16 October 0215 hrs.

Transmitted: To: CinC Rear Area Army Sender

Day : 15 October Group South, la 24th Division

Time: 2125 Telephone

Priority : Extension :

Message

Devoting every effort to the task, the evacuation of prisoners
proceeds according to order. Insubordinations, attempts to escape,
and exhaustion of prisoners make the march very difficult. Al-
ready there are over 1,000 dead as a result of executions by shoot-
ing, and exhaustion. In Aleksandriya, no preparations have been
made by PW transit camp 182 for the permanent accommodation
of 20,000. In Novo Ukrainka, allegedly only for 10,000.

* Photographic reproduction of this document appears on page 326.

30

PARTIAL TRANSLATION OF DOCUMENT NOKW-1605
PROSECUTION EXHIBIT 272

EXCERPT FROM "TEN-DAY REPORT", FROM REAR AREA ARMY GROUP
SOUTH (COMMANDED BY THE DEFENDANT VON ROQUES) TO THE
HIGH COMMAND OF THE ARMY, 20 DECEMBER 1941, CONCERNING
PW DEATHS IN TRANSIT CAMPS, AND REMARKS OF PW DISTRICT
COMMANDER, 21 DECEMBER 1941, ON THE PLAN CONCERNING
THE RELEASE OF UKRAINIAN PRISONERS OF WAR

Commander Rear Area Army Group South
Section la 3172/41 Secret

Headquarters, 20 December 1941
[Stamp] Secret

To High Command of the Army

General Staff of the Army/Generalquartiermeister
Department War Administration
Subject: Ten-day report

Reference: OKH General Staff of the Army/Generalquartier-
meister Department War Administration (Quartier-
meister 4 B) II 865/41 Top Secret, dated 19 June
1941

% >js ^ Hi H* H*

4. Prisoners of war — The mass dying of undernourished prison-
ers of war in the transit camps increasingly attracts unwelcome
attention among the civilian population. The bulk of the prisoners
of war is unable to work owing to exhaustion.

Only a speedy release of the Ukrainians and transfer of collec-
tive transports to the Reich Commissariats can maintain at least
one part of the manpower for the coming spring and prevent a
serious change of attitude among the Ukrainian population.

* * * Jfc $ Hi *

For information :

Army Group South lb (only enclosure I)

For the Commander Rear Area Army Group South
The Chief of the General Staff

Signed in draft: v. Krosigk

Certified :

[Illegible signature]

2d Lieutenant

31

[Handwritten] War Diary
Commander Rear Area Army Group South

Command Post, 21 December 1941
Department Quartiermeister/PW District Commander N

[Illegible initial] 30/12

Remarks on the plan concerning the release of
Ukrainian prisoners of war in Rear Area of Army
Group South

1. On 20 December 1941, the total number of prisoners of war
in the four prisoner of war camps located in the army group rear
area was (Transit PW Camps 160, 182, 205, Permanent PW Camp
346) 52,513 prisoners of war.

2. Mortality rate of prisoners of war in the camps, to 1 [above] .

a. Transit PW Camp 160: from 12,959 prisoners of war, an
average of 10 deaths per day, 28.02 percent per year.

b. Transit PW Camp 182: from 7,507 prisoners of war, an
average of 18 deaths per day, 87.05 percent per year.

c. Transit PW Camp 205: from 9,271 prisoners of war, an
average of 21 deaths per day, 82.06 percent per year.

d. Permanent PW Camp 346: from 22,776 prisoners of war,
an average of 50 deaths per day, 80.1 percent per year.

3. Sick from hunger in Permanent PW Camp 3U6.

I. There are 476 prisoners of war in the hospital among them —
250 Ukrainians
170 Russians
56 Asiatics

476

II. In the medical ward and in the camp 1,500 prisoners of war,
among them — 1,150 Ukrainians
350 Russians

1,500

476 [prisoners of war in hospital.]
1,500

Total 1,976 prisoners of war

4. Food situation of the camps, to 1 [above] . — With the present
number of prisoners of war, the following camps are supplied:

a. Transit PW Camp 160 for 6 weeks.

b. Transit PW Camp 182 for 5-6 days.

c. Transit PW Camp 205 for 8 days.

d. Permanent PW Camp 346 for 25-30 days.

32

5. Total number of Ukrainian prisoners of war in the camps
to 1 [above].

a. Transit PW Camp 160 - - 7,330 prisoners of war

b. Transit PW Camp 182 4,018 prisoners of war

c. Transit PW Camp 205 3,320 prisoners of war

d. Permanent PW Camp 346 7,178 prisoners of war

Total 21,846 prisoners of war

[Signed] Gaul
Colonel and Commandant

PARTIAL TRANSLATION OF DOCUMENT REINHARDT 367
REINHARDT DEFENSE EXHIBIT 92

EXTRACT FROM ENEMY INTELLIGENCE GAZETTE NO. 3 OF 3d PANZER
ARMY, 2 MARCH 1942, CONCERNING TREATMENT OF GERMAN

PRISONERS OF WAR

Panzer Army 3

Section I c/Counterintelligence Officer
No. 325/42 Secret

[Handwritten] Army Headquarters, 2 March 1942
Panzer Army Command 3
la No. 762/42 secret 2/3
Enclosure to II. 12

[Stamp] Secret

Enemy Intelligence Gazette No. 3
(concluded 1 March, 2400 hours)

A. Enemy situation as a whole and its development
during the second half of February
* * * * * * *

6. Subject: Treatment of prisoners of war

Southwest of Demidov, 24 murdered German soldiers were
found, whose legs and hands were chopped off by the Russians
on 8 and 9 February, and part of whose bodies were burned.

On 23 January, 107 German soldiers were taken prisoner by the
Russians while attacking Russian supply columns near Durakovo
(approximately 30 kilometers to the northeast of Toropets) . After
having been taken prisoner, they were immediately upon capture
“summarily shot” in a forest.

33

PARTIAL TRANSLATION OF DOCUMENT NOKW-3531
PROSECUTION REBUTTAL EXHIBIT 33

EXTRACT FROM ORDER BY COMMANDING GENERAL OF REAR AREA
ARMY GROUP NORTH, 22 JUNE 1942, CONCERNING SUBORDINA-
TION OF COMMANDERS OF PRISONERS OF WAR. AND "SERVICE
REGULATIONS FOR THE COMMANDERS OF PW'S IN THE OPERA-
TIONAL AREA".*

Commanding General of the Security Troops and
Commander in Rear Area Army Group North
Section Ia/Qu. Diary No. 1441/42 secret

Headquarters, 22 June 1942
APO 11 122

Secret

Subject: Prisoners of war units

Reference: 1. High Command of the Army/Gen. Staff of the
Army/Org. Sect./Generalquartiermeister Dept. War
Administration (Quartiermeister, 5 PW’s) No.
11/3910/42 secret, dated 9 June 1942.

2. Army Group Command North/Oberquartiermeis-
ter/Quartiermeister 2 No. 4067/42 secret, dated
16 June 1942.

Enclosure 1

1. According to reference 1 above, a commander of prisoners
of war will be subordinated to each army group command. His
duties are laid down in the attached service regulation.

2. The units prisoner of war — district commandant, transit PW
camp and army prisoner collecting point are Army [GHQ] troops
(Guard Units [Ordnungsdienste] ) .

3. They will be subordinated to the army groups or armies
(Panzer armies) by the High Command of the Army/General
Staff of the Army/Generalquartiermeister. Their subordination
is a “subordination in every respect” i.e., in respect to military
duties, personnel, disciplinary, and judicial matters. They will
receive departmental directives from the commander of prisoners
of war of their superior command authority.

4. The army groups may subordinate the units under their
command to the commander of the army group rear area, armies
and Panzer armies. The provisions of paragraph 3 for the sub-

* This document was introduced as part of the prosecution's rebuttal evidence to the claim
made by several defendants that the prisoner of war organization was not under their juris-
diction.

34

ordination will apply, with the stipulation, however, that the
subordination may also be a “tactical subordination” if it is for
a temporary duration only. In this case with respect to military
duties, personnel, disciplinary, and judicial matters the units re-
main subordinated to the army groups.

5. If the prisoner of war units are subordinated to armies
(Panzer armies) etc., by the army group, they are still bound to
the directives in respect to departmental matters to the com-
mander of prisoners of war with the army group command.

* * * * * * *

For the Commanding General

Chief of General Staff

[Illegible signature]

Colonel, GSC

Copy

Service Regulations for the “Commander of Prisoners
of War in the Operational Area”

1. The commander of prisoners of war is subordinated to the
command of the army group.

2. The commander of prisoners of war is adviser to the com-
mand of the army group (lb) in all questions concerning prisoner
of war matters. He suggests the assignment and subordination of
the prisoner of war district commanders, of the transit PW camps,
the forward permanent PW camps and the army prisoner collect-
ing points. When assigning prisoner of war units subordinated
to armies (Panzer armies) and/or commander of army group
rear area, he is to be consulted.

3. The commander of prisoners of war is superior officer for the
troops of the prisoner of war agencies and units immediately sub-
ordinated to the army group. He has the disciplinary authority
of a division commander.

4. The commander of the prisoners of war supervises on behalf
of the CinC of the army group, the activity and the condition of
the prisoner of war agencies and units with regard to personnel
and material. He is authorized to issue to them directly depart-
mental directives on behalf of the CinC, also if they are subordi-
nated to the armies (Panzer armies) and/or commander of army
group rear area. Prior to issuing directives, the competent com-
mand authorities are, if possible, to be consulted or to be informed
immediately afterwards.

5. The care of the prisoners of war (shelter, food, clothing,
medical care, etc.) their guarding, and their labor allocation is in

35

principle the responsibility of the command authorities to which
the prisoner of war agencies and units are tactically subordinated.
Deficiencies which the commander finds on his inspection must be
reported by him immediately to the command authorities with the
request for remedy, if necessary he will report to the CinC of the
army group.

6. When preparations for strategic operations are being made,
the army group has to inform the commander of prisoners of war
in advance. He will in agreement with the armies (Panzer
armies) and commander of army group rear area, as well as the
commanders of prisoners of war in the areas of the armed forces
commanders, submit in advance proposals for the care and re-
moval of the prisoners of war, and establish such measures as are
necessary for the smooth execution of the directives laid down by
the High Command of the Army with respect to treatment, care,
and removal of the PW’s in general and in individual cases.

7. The commander of prisoners of war will always keep in
personal contact with all military and economic agencies which
are concerned with PW matters (labor offices, economic inspec-
torates, etc.). He will supervise the labor allocation of the pris-
oners of war and will see to it that the instructions of the High
Command of the Army concerning the treatment of PW’s are
observed by those to whom they are allocated for labor.

8. In matters pertaining to personnel of the prisoner of war
agencies and units, the commander of prisoners of war is to be
consulted. He may be called upon by the competent command
authorities to draft qualification evaluations about prisoner of
war district commanders, commanders of transit PW camps,
forward permanent PW camps, and army prisoner collecting point
as well as their deputies.

Certified :

[Illegible signature]

Captain

EXTRACTS FROM THE TESTIMONY OF DEFENDANT
HERMANN REINECKE 1

DIRECT EXAMINATION

* * * * * * *

Dr. Surholt (counsel for defendant Reinecke) : Your Honor,
I would now like to deal with Document NO-3417, Prosecution
Exhibit 363. 2 General, we have already briefly mentioned this
document concerning the question of the general treatment of

1 The complete testimony is recorded in the mimeographed transcript, 2, 6, 7-9, 12 July 1948;
pp. 7179-7445, 7484-7652.

2 Document reproduced in part, earlier in this section.

36

PW’s. Now I would like to put to you questions about the segre-
gation. Please would you keep your answers in conformity with
this? What is the document called?

Defendant Reinecke: The document consists of two parts.
One is an instruction by the Chief of the Security Police and the
Security Service, to which is enclosed an instruction of the OKW
dated 8 September 1941, dealing with the treatment of Soviet
PW’s.

Q. What is the date of the instruction of the Chief of the Secur-
ity Police and the Security Service?

A. 26 September 1941.

i|e si e * * i|: * *

Q. General, how many parts does the decree of the OKW dated
8 September 1941, have?

A. It consists of two parts.

Q. What are they — what kind are they?

A. The first part is a so-called “cover instruction”, and the
second part contains the actual instructions in this field.

Q. If you take these instructions, the part Roman figure III,
what is the subject of the document here?

A. The subject can be seen from the heading “Segregation of
civilians and those PW’s from the Eastern Campaign who are
politically undesirable.”

Q. General, how did the working out of this section of the
instruction arise, what was the external reason for it?

A. Without the corresponding material from the files, I cannot
definitely remember the individual incidents. After I have been
able to go through all this material, a large number of individual
incidents came back to me and with regard to this one, I can
comment. First of all, I remember that one fine day I received
the order — together with receiving some kind of documents which
Keitel gave me at that time — to have an instruction worked out
which basically regulated the question of the treatment of the
Soviet PW’s; the same time also to announce measures which
Hitler had ordered, the purpose of which was to remove danger-
ous Communist PW’s who could have been active as agitators
among the PW’s.

* * * * * * *

Q. General, were you with your Department PW Affairs re-
sponsible for dealing with the segregation of political elements?

A. No.

Q. Who was responsible?

A. Exclusively the Office Foreign Counterintelligence.

Q. Who there?

37

A. The Counterintelligence Department III, whose chief was
Colonel von Bentivegni, who in turn was subordinate to Admiral
Canaris.

Q. Do you know why the competent department did not issue
these orders?

A. If I base my recollection on the period in question, then I
can only remember that I received the order from Keitel to pre-
pare this instruction, and I can only conclude that Canaris
probably —

Q. Did you find out anything from members of Canaris’ office
about why the Office Foreign Counterintelligence did not work on
the matters?

A. Well, today I cannot say with absolute certainty how things
went.

Q. What was your attitude or your agency’s with regard to the
new task, the handing over of PW’s to police agencies at that time ?

A. In itself in this case, too, as already in a similar field in the
previous years in other cases, I was against any handing over of
PW’s to the police.

Q. General, were you informed about what happened to the
PW’s with the police?

A. With those people who were to be segregated according to
this instruction?

Q. Yes.

A. I was only informed that they were to be segregated and
were to have no contact at all with civilian population and other
PW’s; as a result they were to be guarded particularly strongly
and not to be used for general labor.

Q. Were you informed about the reason for this?

A. Yes. I was.

Q. What kind of reasons were these — did you agree with them,
did you think they were adequate, or did you reject them?

A. I was told that the reasons were, as I have already stated,
that under all circumstances they were to be segregated from the
other PW’s, from the general work, and from the civilian popu-
lation.

Q. Well, that is a fact, but not a reason —

A. In order to prevent Communist influence being exerted in
any way to the disadvantage of the other PW’s and the civilian
population —

Presiding Judge Young: Just one question. Did you ever
know of any camps that the police had for containing these prison-
ers of war that were turned over to them?

Dr. Surholt: Excuse me, Your Honor, I don’t think the trans-
lation I heard was quite correct.

38

Presiding Judge Young: I will ask the question again. Did
the police have any prisoner of war camps?

Defendant Reinecke : I assume that, after they had received
PW’s from us.

Q. Well, you had charge of the PW’s didn’t you?

A. No. They were not under me. I had to work on PW affairs
in the OKW. '

Q. Were the PW’s, after they were turned over to the police,
were they still PW’s?

A. As far as I know, they were then released as PW’s.

Q. What did they become then?

A. The Russian PW’s were then treated in the same way as
Russian civilians.

Q. You never heard of the police having a civilian camp then
for these prisoners of war that were released and turned over to
them, did you?

A. Well, I always assumed —

Q. I asked not what you assumed — did you ever hear of it?

A. I never heard anything at all about the existence of a definite
PW camp with the police, that is, a locality.

Q. All right, not having heard of a camp, what did you assume
became of them after they were turned over to the police?

A. Well, I assumed, and I think that it was correct, that since
the police, at least Himmler, always needed a lot of labor, that
he used them for labor in his sphere.

* * * * * * *

Dr. Surholt: Your Honor, in connection with the discussion
about the document in front of you, I would now like to refer to
document NO-3414, Prosecution Exhibit 362.* Have you got the
document, Witness?

Defendant Reinecke : Yes.

Q. Will you please go through it and describe it?

A. The document deals with the Operational Order No. 8 of the
Chief of the Security Police and the Security Service, dated 17 July
1941. The general directives are discussed for the Kommandos
of the Chief of the Security Police and the Security Service to be
detailed to permanent PW camps and transient PW camps.

Q. It is Operational Order No. 8; therefore, it must have had
a predecessor, Witness. I want to know whether these operational
orders of the Chief of the Security Police and the Security Service
sent to the General Armed Forces Office or any of its agencies?

A. I cannot remember ever having seen such an order.

Q. Do you know the contents of this order?

* Document reproduced above in this section.

39

A. I do now.

Q. Also enclosure 2?

A. I would like to correct my answer. At the time in question,
that is before 8 September 1941, I must have seen enclosure 1,
or, at least the contents thereof, since a number of passages in-
cluded in this enclosure, as I have already said, are contained in
the instructions of 8 September. On the other hand, under no
circumstances was enclosure 2 known to me.

Q. Why do you say “under no circumstances”?

A. Because I know, after having read it through, that I do not
know the order as contained herein.

Q. It is a repetition, but that is not a reason for special empha-
sis — “under no circumstances”.

A. I do not know it; under no circumstances.

Q. General, if not at the time, did you hear at any later date
of executions of political elements, not agreeable to the police,
from among the prisoners of war?

A. After 8 September, yes, of course.

Q. When was that?

A. Well, it is rather difficult to determine the exact period, but
I think I remember —

Q. When approximately?

A. I seem to remember that I was enlightened for the first time
about the Hitler order, which I received as an oral order, to the
effect that commissars and Politruks were to be executed during
a visit to a prisoner of war camp in the East.

Q. Witness, I didn’t quite understand this. Did you hear about
this order, or were you officially informed about that order?

A. Officially I did not receive this order. At the time I heard
about it from a commander of a prisoner of war camp.

Q. You did not mention the period, when, according to your
memory, did this happen?

A. I was interrogated in connection with this question, and
originally I seemed to remember that it was in July or August on
the occasion of one of my three journeys to the eastern front ; but
from the examination of the witness Bremer here I discovered
that I was in Riga on the 2d of September, so, it must have been
after that date.

Q. Why after the 2d of September? On what occasion did you
find out about it?

A. Because only after my trip to Riga could I have been in this
camp where I found out about these matters.

Q. When did you take that trip?

A. That was in October.

Q. At the beginning or the end ?

40

A. I could not tell you exactly ; it was quite cool at the time.

Q. What were your experiences?

A. By agreement with the then commander of the Army Group
Rear Area, I visited a transient camp and I talked to the com-
mander and looked at general conditions. On that occasion the
commandant told me very indignantly about the fact that prison-
ers of war were to be turned over to the Security Police, that is
Russian commissars, and that they were to be exterminated.

Q. How did you react to that?

A. On my return journey I went to East Prussia, to the Fuehrer
Headquarters and I reported it to Keitel.

Q. Where was the Fuehrer Headquarters at the time?

A. Near Rastenburg in East Prussia.

Q. Was that on your general route, or did you purposely visit
this headquarters?

A. No. I went to the headquarters for that purpose.

Q. What was the subject matter of your discussion with Keitel?

A. I reported to Keitel about my observations, and I also re-
ported to him this fact. At that time Keitel did not give me a pre-
cise answer to my question as to whether that really was a Fuehrer
order or not. He merely — as had happened in many cases before
which did not actually concern my sphere of tasks in the OKW —
pointed out that it was not my business, “so please don’t bother
about things which don’t concern you”. As I had been informed
on frequent occasions before, he described again, a number of
cruelties and brutalities which had been carried out by Russian
soldiers on German prisoners of war ; he cited these instances and
informed me about details in order thus to make it clear to me
that such measures were of course possible. At a later date Keitel
confirmed this fact to me, saying that this was actually a Fuehrer
order which was in existence. But I never saw the Fuehrer order
myself. I had always believed that it was a reprisal order issued
by Hitler and passed on orally.

Q. Why were you against the turning over at the time when the
order of the 8 September was being drawn up?

A. Because I thought it was quite possible that even in the
armed forces prisoner of war camps segregations were possible,
and that every soldier would take the attitude that a prisoner of
war is, of course, a soldier and therefore has to be guarded by
soldiers.

Q. Did you hear anything at the time about considerations of
international law, or did you interest yourself in the matter?

A. For this purpose and also for other reasons, especially when
prisoners of war of other nations were concerned, I very often
discussed the individual articles of the Geneva Convention with

41

Keitel in which military authorities were mentioned; on various
occasions Keitel replied that Hitler took the point of view that
neither in the Hague Convention, that is, in the Hague Rules of
Land Warfare, nor in the Geneva Convention, had a binding state-
ment been made to the effect that the armed forces was the only
authority entitled to keep prisoners of war, but that, on the con-
trary, at various places it had been expressly mentioned that the
custodial state and the government of the enemy state were re-
sponsible for the prisoners of war.

Q. When considering these matters did you ever express the
thought that prisoners of war were not to be turned over because
the treatment, if left to the police, was inhuman, or that these
people would even be executed?

A. If I had known at the time what I know today, these con-
siderations, of course, would have been the basis for my discussion.
But I did not know it at the time and I did not deem it possible.

Q. Did you at the time initiate any negotiations dealing with
matters of prisoners of war and which were to improve the state
of affairs especially concerning Russia?

A. Yes.

Q. Of what nature were they and when was it?

A. I think I have already pointed out that in August, at that
very time, I took pains myself to come to some kind of agreement
with the Russian Government by utilizing my relationship with
Professor Burckhardt, President of the International Red Cross,
and Minister Patterson [Charge d’Affaires Jefferson Patterson]
of the American Embassy. I asked these gentlemen, without
being authorized to do so, to inspect our camps in the East in
which we housed Russian prisoners of war, and I believe and
know that at least Professor Burckhardt did actually inspect
one such camp, if not others. I do not remember exactly whether
Mr. Patterson did. At the time, I asked the International Red
Cross, which we set great hopes on at the time — in spite of
Hitler’s orders that no lists were to be kept about Russian prison-
ers of war — to have lists of Russian prisoners of war prepared,
and I told the representatives of the International Red Cross about
this state of affairs. I kept these lists in readiness so that at any
moment when contact would be established with the Russians they
would be able to say, “We have already inspected German camps
where Russian prisoners of war are housed. We have lists of
Russian prisoners of war in German hands. Now let us go to
Soviet Russia and let us inspect the camps of German prisoners of
war, and give us list of your German prisoners of war”.

I know that this preparation which I made without the knowl-
edge or approval of Keitel meant a considerable risk for me, and
that for a long time I had hoped that — that hope of course, was

42

destroyed after a year — the efforts of the International Red Cross
would be successful.

Q. General, did you know there were concentration camps at
the time?

A. I did know that there were concentration camps in existence,
and I also had seen a concentration camp.

Q. When was that?

A. In spring 1939, 6 months before the beginning of the war.

Q. On what occasion?

A. In Munich a training course had been initiated for about
160 regimental commanders of the army, commandants of the
larger warships of the navy, wing commanders of the air force
and, upon a request of one of three branches of the armed forces —
I don’t know which it was — I had also included in the program the
inspection of one of the concentration camps because at the time
rumors had spread within the German people, especially concern-
ing the name Niemoeller, that the inmates of these concentration
camps were maltreated. We spent a whole morning in the con-
centration camp Dachau. Himmler, who was most interested in
the matter for reasons of propaganda, was present himself. He
showed us around together with his SS officers and he gave us
a lecture about the inmates of concentration camps and we were
given the possibility in smaller groups to look around in the camp,
to see the inmates, to convince ourselves of their condition, to
visit the barracks and a few groups also were given the chance to
speak to the inmiates. After this I told the gentlemen that if we
had the opportunity to do so, we would like to ask the Reich Leader
SS Himmler a few questions which then would be discussed.

Q. What was the result?

A. The result was thus — that information and rumors that had
spread were not confirmed. The inmates looked extremely
healthy, well-fed, of course not very beautiful because they were
wearing these striped suits, but they were properly dressed, and
of course they did not look very pleased but no animosity showed
in their faces. They discussed matters with us quite normally.

Q. Did you ever see another concentration camp during the
war?

A. No.

Q. General, when working out the order of 8 September 1941,
was the segregation of Jews also discussed?

A. No.

* * * * H* * ik

Q. What practical cooperation was done by the armed forces
agencies?

A. They did not take part in the segregation.

893964—51 4

48

Q. But I am asking you about the general measures.

A. Within the framework of the segregation measures. Only
the counterintelligence officers were to support the commanders.

Q. What was the task of the commanders?

A. The commanders had to turn over to the police those persons
segregated by the Einsatzkommandos.

Q. Were the regulations known to the counterintelligence offi-
cers and to the commanders which served the Einsatzkommandos
as a general basis for their judgment?

A. No.

Q. Why not? How do you know that?

A. If they did not find them out locally from a police officer
they certainly did not find them out from the OKW.

Q. Did the police inform them about these regulations? If you
had received them, would they have appeared in the order of
8 September?

A. I think so, certainly, if we had had them.

Q. They must have appeared there; is that not true?

A. Yes.

Q. Please turn to page 11 of the document. Now, what does the
document say about that ? To whom were the Einsatzkommandos
subordinated ?

A. To the Chief of the Security Police and the Security Service
directly. They were especially trained for a special task, and
carried out their measures and investigations within the frame-
work of the rules prevailing in the camp according to the direc-
tives they obtained from the Chief of the Security Police.

* * * * * * *

TRANSLATION OF DOCUMENT GENERAL DEFENSE
DEFENSE EXHIBIT 79

SUPPLEMENT TO EXPERT LEGAL OPINION BY PROFESSOR REINHART
MAURACH* (UNIVERSITY OF MUNICH), SUBMITTED ON BEHALF OF
THE DEFENSE IN CASE NO. 12

I

In my legal opinion, which was submitted to the defense in
May 1948, in Case No. 12, I held the opinion that the provisions

* Professor Maurach, who before World War II was instructor (Dozent) at Koenigsberg
University, is the author, among other works, of the following: “Anfaenge eines Voelkischen

bchutzes im Alt-russischen Judenstrafrecht” (“Beginnings of Racial Protection in the Old
[Czarist] Russian Criminal Law concerning Jews”) in: Journal of the Academy for German
Law, 1940, pp. 267-279; “Die Siedlungszonengesetzgebung des Russischen Reiches und ihre
Bedeutung fuer das Ostjudenproblem” (“Legislation concerning Zonal Settlement in the
Russian Empire, and its Significance for Eastern Jewry”), in the symposium “Judenviertel
Europas” (“The Jewish Quarter of Europe”), edited by H. Hinkel, Essen, 1939; “Russische
Judenpolitik” (“Russian Policies concerning Jews”) Berlin, 1939.

44

of the Geneva Prisoner of War Convention of 1929, were binding
upon every signatory power regardless whether its enemy in war
had become a party to the convention or not.

On the other hand, the defense maintains that the provisions of
this convention do not apply to a signatory power in cases in
which it has been involved in war with a country not a party to
the convention. In substantiation of this opinion the defense
submitted material to me, following the completion of my legal
opinion, which was unknown to me at the time I wrote my opinion.
This material is of such decisive importance that it makes impera-
tive a re-examination of the legal questions as outlined in para-
graph 1.

II

In drawing up my legal opinion, I proceeded less from the text
of the convention, which was capable of misinterpretation at that
time, than from the origin of the agreement. The tendency of the
Geneva Convention aimed at obviating the disadvantages inherent
in the all-participation clause upon which the Hague Convention
of 1899-1907 was based. From the very outset it aimed at greater
universality. The contractual, and hence the relative, point of
view was supposed to step aside in favor of a humanitarian, and
hence an absolute point of view. This explains the abolition of
the all-participation clause of Article 2 of the Hague Rules of
Land Warfare and its replacement by Article 82, paragraph 2 of
the Convention of 1929. This conception was also clearly ex-
pressed in the German translation of the agreement, which reads
as follows :

“If, in time of war, a belligerent is not a party to the con-
ventions, their provisions shall, nevertheless, be binding for the
belligerents who are parties thereto.”

This embodies — by reason of the prevalence of the efforts in
Geneva of those having decisive authority — an absolute obligation
for every party to the convention. Reasons of humanity demand
that prisoners of war, in other words the victims of war, be treated
in accordance with the convention, even if the native country of
these prisoners of war has not been a party to the Geneva Con-
vention.

No one-sided or intolerable imposition arose for the signatory
power by virtue of this fact. For apart from the fact that it was
obliged to act not on the basis of the relative maxim do ut des,
but in accordance with the absolute principles of humanity, the
Geneva Convention could proceed from the fact, as stated in the
legal opinion, that the country which had not become a signatory
to the convention would also observe the customary legal regula-

45

tions of international law, so that in principle the obligations of
the two parties were thus offset. The Geneva Convention did not
anticipate a case where a country which denied the principles of
international law would become a belligerent.

This interpretation — namely, an absolute and not only a relative
obligation of the convention — arises from events which led to its
origin, and, in particular, its antithesis to the Hague Convention.
My legal opinion was also based on this interpretation.

Ill

However, it must be admitted that this “historic interpreta-
tion”, which was of decisive importance in drawing my conclu-
sions, cannot simply claim validity, and that it can, with justifi-
cation, be opposed with divergent opinions. This point must now
be discussed.

1. In formulating the text of the agreement the principle of
absolute obligation was not clearly and unequivocally expressed.
One can even infer the principle of limited-absolute obligation, in
other words : through the participation in hostilities of nonsigna-
tory powers, the agreement per se should not be affected, but
rather it should have further application (absolute obligation) ;
however, its provisions should only be applicable between those
belligerent which were parties to the convention (limitation of the
principle of absolute obligation) . This interpretation follows from
the French (authentic) text of Article 82, paragraph 2:

“Au cas, ou, en temps de guerre, un des belligerants ne serait
pas partie a la convention, ses dispositions, demeureront nean-
moins obligatoires entre les belligerants qui y participent”.

And likewise the English “Manual of Military Law” (though not
an authentic version of the agreement, but in any event of mate-
rial importance for the interpretation) adopts the authentic ver-
sion in the verbatim translation in Chapter XIV (Amendments,
No. 12, sec. 6, par. 3) :

“If, in time of war, a belligerent is not a party to the con-
ventions, their provisions shall, nevertheless, be binding as be-
tween all the belligerents who are parties thereto”.

Herewith the expression “fuer” [for], implying an absolute
sense, in the German translation is replaced by the relative ex-
pression “entre” in the authoritative French text, and by the
corresponding expression “between” in the English translation.
Here is the result of the purely reciprocal effect of the obligation.
In the case of the participation of the U.S.S.R., in hostilities from
1939-1945, the Geneva Convention was to be applicable in rela-
tions between the German Reich on the one hand and the Western

46

Powers on the other, but not, however, between the German Reich
and the U.S.S.R.

2. Of even greater importance are the arguments which the
defense submits concerning the negotiations between the German
Reich and the U.S.S.R., with respect to the application of the
Geneva Convention. The defense submits the following:

“When Germany, at the outbreak of war, attempted to initiate
negotiations concerning the treatment of prisoners of war, the
U.S.S.R., is supposed to have stated [habe ***erklaert] that it
attached no importance to the treatment of its prisoners in ac-
cordance with the principles of the convention, since they re-
garded these prisoners as traitors, and in addition did not wish
to impose any restrictions upon itself with respect to the treat-
ment of German prisoners of war.”

The defense will presumably submit the proof of this statement
to the Court. If one assumes that this will be proved, this con-
stitutes further important substantiation for this interpretation
in line with the legal opinion of the defense. The question should
not be examined here whether the homeland’s renunciation of the
application of the convention is admissible and operative (the
question would have to be answered in the negative in substan-
tiating the above-mentioned absolute or humanitarian standards) .
The attitude of the U.S.S.R., however, indicates a symptomatic
significance. For one can deduce therefrom that the Geneva Con-
vention should apply only in the “limited-absolute” sense, in line
with the statements under III, 1 : not “for”, but “between”.

IV

To sum up, the arguments of the defense appear to me to be
of such significance that they justify an opinion in opposition to
mine.

For the sake of completeness, however, may I point out that
in the final analysis my legal opinion coincides with that of the
defense. For, whereas the defense has rejected the formal legal
validity of the Geneva Convention as applied to the German-
Russian war, I held the view in my legal opinion that the agree-
ment, in accordance with Article 82, paragraph 2, binds the enemy
of a nonsignatory power also as far as the formal wording of the
agreement is concerned ; but that, however, is only the case in the
event of a war between two countries which adhere to the prin-
ciples of international law. If one of the partners, consistent with
its politics and dynamics, remains outside the community observ-
ing international law, then the Geneva provisions, for material

47

reasons, are not applicable. In this respect, reference is made to
the statements in the legal opinion under IV.

Diessen/Ammersee, 22 July 1948

Signed: Maurach
(Prof. Dr. Reinhart Maurach)

TRANSLATION OF DOCUMENT REINECKE 120
REINECKE DEFENSE EXHIBIT 120

AFFIDAVIT OF REINHARD VON WESTREM,* 21 JUNE 1948

I, Reinhard von Westrem, born 29 April 1879, at Haus Huel-
grath, Duesseldorf have been warned that I am liable to punish-
ment if I make a false affidavit. I declare in lieu of oath that my
statement is true and was made to be submitted as evidence to the
Military Tribunal Court V A, Case No. 2, in Nuernberg.

From November 1939 until the beginning of August 1940, I was
the commander of the officer’s prisoner of war camp in Mainz;
from August to September 1940, commander of the senior staff of
the two new officer prisoner of war camps to be set up near Nuern-
berg; and from October 1940 until 28 February 1943, I was com-
mander of prisoners of war in Military District XII, Wiesbaden.

1. As commander of prisoners of war, I was subordinate, in
regard to orders and discipline, only to the military district com-
mander of prisoners of war and to the deputy commanding gen-
eral. The office of a commander of prisoners of war was a division
of the military district command, just as, for instance, the office
of the commander of the signal corps units, or of the corps medi-
cal officer, etc. The correspondence had the following heading:
“Military District Command XII, Commander of Prisoners of
War”.

The military district commands were subordinate to the High
Command of the Army/Commander of the Replacement Army.

The OKW/General Armed Forces Office (General Reinecke)
had neither the power to issue orders to, or exercise disciplinary
measures against the commanders of the prisoners of war. The
OKW issued the basic, i.e., the generally valid basic decrees and
instructions. Beyond this the OKW only had the right to inspect,
i.e., a right to inspect the camps and work details. The OKW
made ample use of this right through the inspector, as well as
through individual officers of the OKW (PW [Affairs]).

2. In the camps under my command there were prisoners of
war from all enemy countries, about 120,000 in all, with the ex-

* Extracts of von Westrem’s testimony concerning the contents of this affidavit are repro-
duced below in this section.

48

ception of Americans. The number of English prisoners was
small, in 1940 they were only placed in transit camps.

3. In the treatment of the prisoners of war — with the exception
of the Russians, which I will elaborate on later — the provisions of
the Geneva Convention were strictly complied with. The camps
and the work details were inspected regularly. The work details,
and especially the industrial work details, received our particular
attention. The observations made in regard to the treatment of
the prisoners of war were satisfactory. Sometimes the treatment
was so good that it aroused the ill will of the offices of the four
Party district leaders [Gauleiter] in my district. They did not
consider the prisoners of war as honorable prisoners, but rather
as criminals. The offices of the Gauleiter disliked the Geneva
Convention. I personally only came upon one case of maltreat-
ment by a German of these industrial details (a low trick by a
foreman) ; this was at Saarbruecken, and I immediately inter-
vened. I also paid a great deal of attention to the food for the
prisoners. This was especially necessary where the industrial
concerns had turned over the serving of meals to contractors. My
visits and inspections in the camps occurred without previous an-
nouncement, so that I was always informed about the conditions
as they actually were. Usually I was on the road three days of
every week. Each time a report was made to the military district
in which the good and bad observations were reported frankly and
precisely. The chief of staff, the commander of the military dis-
trict and the deputy commanding general, all of whom took a great
interest in the prisoners of war in the camps and work details,
read each one of these reports and commented on them. Defi-
ciencies that arose were immediately investigated and taken care
of through the corps medical officer or the administrative office.
Besides my personal inspections, I often sent officers of my staff
on surprise visits, for instance, at night and on holidays. Fur-
thermore, according to regulations, each PW main camp com-
mander had his regular deputy and enough vehicles so that he
could visit the work details personally at any time or have them
inspected by his officers.

All these things were not peculiar to Military District Com-
mand XII. They were in accordance with the basic decrees and
directives of the OKW/General Armed Forces Office, and based
on the experience and reports of the commanders of prisoners of
war, who, in the beginning, were mostly general staff officers from
the old army — men with a strict conception of duty and great
talents for organization. All the measures were absolutely on the
lines laid down by the OKW/General Armed Forces Office.

At the meetings of the commanders of the prisoners of war,

49

which were called by the OKW in order to explain the ideas of
the Fuehrer and of the chief of the OKW concerning the basic
decrees, Colonel Breyer, as Reinecke’s representative always
pointed out that the provisions of the Geneva Convention had to
be observed. I remember once that one of the participants made
a proposal — for practical reasons, no doubt — which was immedi-
ately turned down by the representative of the OKW/General
Armed Forces Office as not being in conformity with the Geneva
Convention. It was explained in connection with this that our
own prisoners of war would have to suffer for any violation of
the rights of prisoners of war.

The Control Commission (representatives of the protecting
powers) received all necessary assistance in their work, especially
on their visits to the camps and work details. These visits were
relatively frequent. They could speak alone and without super-
vision with the representatives of the prisoners, whom the prison-
ers elected themselves from their own ranks. I did not learn of
one single serious objection from a representative of the protect-
ing powers. On the contrary, the American representatives
(Senior Legation Counsel Patterson) always expressed their ap-
preciation to me on the occasion of their visits. So far as the use
of the French prisoners of war as workers is concerned, a special
agreement had been reached with the French Government, the
validity of which I had no occasion to doubt.

I only read recently in the newspapers, in the reports on the
Nuernberg trials, to be exact, about dishonorable and inhuman
treatment of the prisoners of war on the work details at the Krupp
firm. Even though these work details did not belong to my dis-
trict, I simply cannot imagine such events in view of the way
prisoner of war affairs were regulated from above. The controls
from above (OKW, commanders of the prisoners of war, com-
mander of the PW permanent camps, the competent battalion
commanders, their company commanders and officers who were
always traveling) and the opportunities the prisoners themselves
had to make complaints, were basically established and assured,
i.e., for the camps and the work details, so that remedies must
have been possible at all times through the prisoners themselves.

4. a. There were exceptions in the treatment of the Russian
prisoners of war, but only insofar as they were expressly ordered.

b. At about the end of September, or the beginning of Octo-
ber 1941, before the arrival of the first Russian prisoners of war
in the territory of Military District XII, the decree of the OKW,
dated 8 September 1941, ( NO-34-17 , Pros. Ex. 363)* concerning

* Document reproduced earlier in this section.

50

the treatment of Russian prisoners of war was announced orally —
and also transmitted in written form — at one of the above-men-
tioned meetings of the commanders of prisoners of war. General
Reinecke spoke first. But he had only spoken a few general, in-
troductory sentences when he was called away, as far as I re-
member. Then Colonel Breyer spoke for him, limiting himself
essentially to the order. At any rate, he did not go beyond the
purely factual contents of the order. He did not speak sharply
himself, nor did he demand such behavior from those present in
their execution of the order, which also would not have been in
keeping with his general attitude. I remember that General
Reinecke remarked later that he did not have to announce his
own opinion, but that of the Fuehrer, thus informing us of Hitler’s
attitude to the prisoners of war. There was another conference
of the commanders 6 or 8 weeks later in which a basic change in
regard to the treatment of the Russian prisoners of war was
announced, with the intention of including the Russian prisoners
of war in the labor program.

To describe this change I will quote the remark General
Reinecke made in that respect, as I remember it. He said that
the Reich Marshal demanded that the Russian prisoners of war
be treated like raw eggs from now on !

c. The condition of the first Russian prisoners of war who
arrived in my territory in about the first half of October 1941,
was simply terrible and unworthy of man; they were totally
starved. There were about 4,000 men. Mortality was about 15
to 20 percent. These were people who came from the first battles
of the war in the East. The condition of those arriving later was
better. Military District XII immediately issued special direc-
tions concerning better food (so-called feeding-up) and medical
care. Later general directives of this sort were issued by OKW/
General Armed Forces Office. At the end of December 1941, the
condition of the Russian prisoners of war was normal, generally
speaking.

d. The German guards were forbidden to mishandle Russian
prisoners of war, or to use sticks or whips at all. Naturally they
had to make use of their arms in cases of insubordination and
flight. In general, the German guards had pity on the starved
Russians. On the other hand, the Russian camp police, who were
responsible for order in their own ranks, were rough. I myself
saw a column of Russian prisoners of war on the march, in which
two men were bleeding from head wounds. I stopped immediately
and ascertained the facts.

It was a case of maltreatment of the Russians by their own
compatriots who were assigned as camp police. I immediately

51

called the German in charge to account and informed him that I
would have him confined immediately in case of a repetition. On
this occasion I issued strict instructions to the PW main camp
commandants.

e. Concerning the segregation of Russian prisoners of war, I
can state the following — I happened to be in the Limburg camp
when a segregation of this kind was made in my district. The
commission making the segregation was composed of three or four
men in civilian clothes. Three or four Russian prisoners in uni-
form who spoke German and were probably Jews stood by. Then
the prisoners of war were led past, one after another, whereby
these Jews named to the commission those who were politically
suspected. Thereupon followed an interrogation during which
the accusations were examined. This segregation was a second
screening of the afore-mentioned first 4,000 prisoners of war, all
of whom were brought to Limburg. Therefore the number of the
segregated men probably amounted to only 20 or 30. At all
events, two trucks were sufficient for their transport, inclusive of
guards. The Higher SS Leader Roesener (Rhine sector) sug-
gested that I have the segregated prisoners of war transported to
Weimar by members of the armed forces. I declined this point
blank. It was not the task of the armed forces to carry out these
transportations. No orders of this kind had been given. Later
on the segregations were discontinued.

It seemed to me to be quite reasonable that the commissars, who
were not soldiers at all, were segregated, and that the German
authorities wanted to have them in a separate camp for reasons
of political security. This was not extraordinary, there were for
instance camps for Mohammedans, Ukrainians, and the like. I
only learned the truth about these things after the collapse, namely
through the Nuernberg trials.

During the joint meetings of the commanders of prisoners of
war which took place regularly, no remark was made, either by
people from the General Armed Forces Office or any of the com-
manders, which would have admitted the conclusion that the
segregated Russians were executed by the SS. In view of the basic
attitude of the commanders at that time, particularly towards such
matters and to the Party, if such things had become known, it
would certainly have led to violent discussions and would have
had official repercussions.

5. High ranking foreign officers who were lodged during the
war as prisoners in Military District XII, expressed to me on their
own initiative, after their return to their native countries, their
thanks for the good treatment they had been given during their
captivity. I am in possession of letters from the Dutch Admiral

52

von der Stadt, from the French Division General Keller, from
General Bernard, senior camp inmate of Officer PW Camp XII A,
Mainz, from the present French Military Governor in Calw
( Wuerttemberg) , Frenot.

In general, I should like to state that in those cases where pris-
oners of war were treated badly the Party’s agitation against the
PW’s is to blame. With the long duration of the war, the Party
meddled more and more with PW affairs. This resulted in con-
tinuous friction, in which we did not have sufficient backing in
consequence of Keitel’s attitude. But particularly because of this,
the majority of the officers and noncommissioned officers protected
the PW’s and executed unintelligible orders of Hitler and Keitel
in compliance with duty and honor.

I have carefully read the above affidavit and signed it person-
ally. I have made the necessary corrections and countersigned
same with my initials. I herewith declare in lieu of oath that all
facts stated by me in this affidavit, consisting of 9 pages, corre-
spond to the whole truth to the best of my knowledge and belief.

[Signed] Reinhard von Westrem

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS
REINHARD VON WESTREM 1

Mr. Dobbs: I understand there is one affiant here for cross-
examination.

Presiding Judge Young: On which one of the defendants?

Mr. Dobbs : Again in the case of Reinecke.

Presiding Judge Young: You have a witness here then on an
angle of the Reinecke case?

Mr. DOBBS : Yes. He gave a defense affidavit and I would like
to cross-examine him.

Judge Hale: What’s the number of that affidavit or exhibit so
we can get it, please?

Mr. DOBBS: In this new instance, sir?

Judge Hale: The one you propose to cross-examine about an
affidavit. We would like to get the affidavit he made, so that we
may follow it.

MR. Dobbs : It is Defense Document Reinecke 120, bearing the
same exhibit number. 2 The affiant’s name is Reinhard von
Westrem.

Presiding Judge Young: You may call the witness.
******

1 Complete testimony is recorded in mimeographed transcript, 23 July 1948, pp. 8390-8408.

2 Cf. preceding document.

53

CROSS-EXAMINA TION

* * * * * * *

Mr. Dobbs: General, there’s a question that seems to be dis-
puted around here. Maybe you can answer it for me. Did Gen-
eral Reinecke have anything at all to do with prisoner of war
affairs?

Witness von Westrem: General Reinecke was the head of the
General Armed Forces Office to which prisoner of war matters
were subordinate. General Reinecke himself was subordinate to
the Chief of the Army Command [Chef der Heeresleitung] or to
Keitel.

Q. I noticed in your affidavit that you pointed out that Reinecke
had no disciplinary power over the commanders of prisoners of
war, etc. Well, how is it then, if he didn’t have these powers to
issue orders or to exercise disciplinary measures against the com-
manders of prisoners of war, can we say that he was concerned
with prisoner of war matters?

A. General Reinecke had no authority in disciplinary respects,
the commanders of prisoners of war were subordinate to the mili-
tary district commanders.

Q. Did you feel that the OKW/General Armed Forces Office in
Berlin was the head office for prisoner of war matters?

A. I am of the opinion that the OKW/General Armed Forces
Office was the agency charged with handling prisoner of war
matters.

Q. Do you recall telling me at one time that the General Armed
Forces Office was one of the controls from above?

A. I beg your pardon. I didn’t quite get you. I allegedly said
that the General Armed Forces Office had exercised the control?
Could you please repeat your question?

Q. Yes, I will. As a matter of fact, I don’t think you told that
to me. I think it appears in this affidavit on page 57 in the
English and page 4 of the original. It says : “The controls from
above — OKW, commanders of prisoners of war, and commander
of the camps.” The General Armed Forces Office was a control
from above, isn’t that so?

A. Yes. General Armed Forces Office, that is, the Department
of Prisoners of War, did use extensively its right to control the
prisoners of war, the camps, and also the work details. That was
done in the first place by General Reinecke himself, who visited
me twice, then by the inspector of prisoner of war matters who,
on behalf of the General Armed Forces Office, was constantly
traveling around. It was also done by individual officers on the
staff of the General Armed Forces Offices who, by surprise, came
to visit labor detachments and prisoner of war camps.

54

Q. General Westrem, when you looked for matters to be decided
on a policy level concerning prisoners of war, where did such a
decision come from?

A. I don’t know who made the decisions in Berlin. The agency
which communicated to us the decisions made in Berlin was the
General Armed Forces Office, Department for Prisoners of War.

Q. Would I be correct in saying that for all practical purposes
the chief of the General Armed Forces Office was the boss of
prisoner of war matters?

A. Hitler was the highest authority in all matters, and every-
thing which happened in this war, including prisoner of war
matters, sprang from Hitler, I would also say partly from the
caprices of Hitler, and that was so dominant that, unfortunately,
the top authorities were not in a position always to check these
erratic decisions of Hitler.

Q. General, do you think that there was any practical distinc-
tion between a directive and an order?

A. For a soldier, every directive is an order. It would be re-
bellious to make a distinction between a directive and an order.

sfc $ J§« * ifc * *

EXAMINATION

Judge Harding : Witness, it appears that you were commander
of certain prisoner of war camps and also commander of prisoners
of war in Military District XII, as I understand your various
capacities. Is that correct?

Witness von Westrem : I am afraid I haven’t quite under-
stood the question, Your Honor. [Question repeated by inter-
preter] Yes. That is correct.

Q. Now, in those various capacities, if you received a directive
from the General Armed Forces Office, could you disobey such
a directive?

A. The order had to be obeyed of course, but the way in which
it was obeyed, this was left to one’s own discretion.

Q. That is, there might be certain latitude in certain cases, as
I understand it?

A. Yes, that existed. Common sense would dictate what one
should do.

Q. But you were supposed to and responsible for obeying that
directive?

A. I never received an order which demanded that I or any of
my subordinates should commit a crime. If any of the orders had
asked us to commit a crime, we would have been able to disobey
it on the basis of the service manual.

Q. Did such orders or directives come to you directly from the

55

General Armed Forces Office or did they have to go through some
intermediary channel?

A. That differed, Your Honor. Most orders came to us through
service channels via the Military District Headquarters. Those
were the orders of which the commanding general had to have
knowledge. However, if they were orders of a minor importance
and mainly concerned administrative matters, then I think it may
have happened that we received them directly from the General
Armed Forces Office, Prisoner of War Department.

Q. Normally an order of the General Armed Forces Office was
transmitted to you through certain official channels?

A. Yes, via the Military District Headquarters.

Q. But when it reached you it was still an order of the General
Armed Forces Office, was it not?

A. No. In such a case it wasn’t an order from the General
Armed Forces Office but an order from the army command and
the General Armed Forces Office was only the executive office.

Q. Well, I understand that. But as it came from the General
Armed Forces Office it was transmitted to you through channels
without modification?

A. The Military District Headquarters did not effect any modi-
fications. The order would come from Berlin from the General
Armed Forces Office and would be transmitted to us, as it stood,
from the military district headquarters.

Judge Harding: That’s all. Thank you.

JUDGE Hale: May I ask the witness this? General, did any of
the officials of the Party ever bring any pressure to bear upon you,
regarding your treatment of the prisoners of war under your
jurisdiction?

Witness von Westrem : My authority over prisoners of war in
Military District XII comprised the territory of 4 Gauleitungen
[Party districts] and all those 4 Gau administrations in increasing
manner pressed us because they thought we treated prisoners of
war too humanely. The Party and all the organs belonging to it
considered the Geneva Agreement a red flag and they would
either have us consider prisoners of war as criminal prisoners
than as war prisoners and honorable prisoners. For instance, the
Gauleiter [Party district leader] asked me to come and see him
and he would then reproach me to the effect that prisoners of war
were treated too well in the country at the farms where they were
working. For instance, if they had to work for a farmer who
was at the front they would be allowed to have their meals to-
gether with the wife of the farmer. For instance, the Gauleiter
also told me one day, “I have found out that one prisoner of war
living on a farm was given a quilted blanket to sleep under and

56

that doesn’t seem correct.” So that is the kind of reproaches that
we heard. I answered him that if they could give me a different
blanket I would send it to him, but probably the farmer’s wife
only had a quilted blanket to give the prisoner and hadn’t got
anything else. Other difficulties always arose from the religious
care. For instance, the Gauleiter did not want us to allow the
prisoners to visit churches. The Gauleiter, Sprenger of Frank-
furt, for instance, had prohibited that Catholic religious services
were given to prisoners of war because no German mother could
be expected to pray in a church where the enemies had also re-
ceived their religious service. That shows the kind of petty re-
proach that we were always hearing from Party organs.

Q. Do you know whether or not this Party intervention also
extended to the AWA?

A. No. I don’t know that. All I know is that we in subordinate
position were’ under the impression that we had to defend our-
selves against the Party interference. We were convinced that
Keitel had forsaken us.

Q. Did General Reinecke ever make any protest against the
intervention of the Party in the administration of his affairs?

A. No. General Reinecke — anyway I don’t know about it.
Judge Hale: That’s all.

*******

TRANSLATION OF DOCUMENT VON ROQUES 24
VON ROQUES DEFENSE EXHIBIT 28

AFFIDAVIT OF HANS VON TETTAU, 30 APRIL 1948

I, Hans von Tettau, born on 30 November 1888, residing in
Rheydt/Rhineland, Hindenburgwall 50, Lieutenant General of the
Infantry (ret.), have been warned that I make myself liable to
punishment by rendering a false affidavit. 1 declare in lieu of
oath that my statement is true and was made to be submitted in
evidence to the American Military Tribunal V, in Case No. 12, at
the Palace of Justice in Nuernberg, Germany.

1. From 16 March 1940 onwards, 1 was commander of the 24th
Infantry Division, which in 1941, was employed in the area of
Army Group South on the eastern front in Russia. It was directly
subordinated to the Army Group as reserve, after the fighting in
the so-called Kiev pocket was over.

2. In September-October 1941, my division was withdrawn from
this area of operation. It was to be committed in the Crimea.
The transfer was to be carried out on foot from the region of
Kremenchug to the Crimea. The order for this march was re-

57

ceived by the division from Army Group South. The Army Group
also attached with it an order to transport on foot to the rear
Russian prisoners of war who, during the battle of the Dnepr bend
were captured in very great numbers. During the transfer period
my division remained directly subordinated to the Army Group.
Considering the limited means of communication then available
on the eastern front, it is quite possible that reports made by my
division during that time went via the Commander of the Army
Group Rear Area or the commander of an army rear area to Army
Group South. This happened merely for technical reasons, but
does not prove the subordination of my division to any of these
commanders.

3. In regard to the transport of these prisoners of war to the
rear I can say the following:

As far as I remember, my division had to transport about
200,000 men. The majority of the prisoners were already in a
very poor physical condition at the time of capture. Many of the
Russian units had already participated in the heavy fighting at
the start of the war and in the long retreats, which tends to
worsen the condition of any troops, as experience has shown. In
addition, the Russian soldiers had fought to the utmost during
the pocket battles [Kesselschlachten] . The fighting lasted long and
was extremely severe. The Russian units were surrounded on all
sides, so that the supply of clothing, food, and medical equipment
was held up. All these circumstances contributed to the poor
physical condition in which the Russian soldiers were found when
captured.

My division did everything humanly possible to relieve the
plight of the prisoners. The whole engineer battalion was motor-
ized and sent ahead of the marching columns, in order to prepare
proper quarters. Supplies for the prisoners were organized by
sending motorized columns of the division with foodstuffs ahead
into the villages through which the march was to go. There the
food was prepared by the civilian population and distributed to
the prisoners. Cooking facilities were also installed in the camps,
especially for preparing drinks.

There were, of course, many more or less seriously wounded
among the prisoners. A special camp was set up for them. The
daily march, in consideration of the condition of the prisoners,
was fixed at 20 to 25 kilometers.

Furthermore long rest periods were ordered on the way. Prior
to each march, Russian and German medical personnel ascertained
who was not capable of marching. If possible these people fol-
lowed behind in horse-drawn columns. As far as this was not
possible, they were retained under guard and later brought into
collection camps for sick prisoners. There many died of exhaus-

58

tion and wounds, which was unavoidable in spite of the use of
all available means.

With the aid of interpreters it was properly announced that in
cases of attempted escape, which usually occurred during the rest
periods thoughtfully provided, weapons would be used in accord-
ance with the regulations. Nevertheless attempts to flee were
made frequently due to the extended marching columns and large
resting areas. On such occasions prisoners were shot by the legal
use of arms.

I personally made daily motor trips along the marching columns
and received reports from the commanding officers. I also in-
spected the camps before they were occupied and ordered addi-
tional improvements. On my inspection trips the question of
those unable to march never came up because this was settled
basically in advance. I once more refer to the fact that each
marching column had horse-drawn vehicles for those unable to
march, and that, as far as was possible, those unable to march
were received into special collection camps for the sick. These
measures aimed at separating in advance those unable to march,
so that disturbances and difficulties on the way should be avoided.
I know nothing about shootings of prisoners of war unable to
march. If actually such shootings occurred then it was a case of
excesses by individual guards acting against the general rules as
well as against specific instructions issued by me for the special
care of those unable to march. I would have intervened if I had
known of such excesses.

If, a report of my division quoted in Document NOKW-1615,
Prosecution Exhibit 257* states: “Due to shootings and exhaus-
tion already more than 1,000 dead” then this does not mean that
exhausted prisoners were shot. This sentence must be taken in
connection with the preceding one, in which there is mention of
disobedience and flight attempts by prisoners of war. The shoot-
ings, therefore, refer to disobedience and flight attempts, during
which arms had to be used. As a matter of fact nothing can be
gained from this report about how many of the dead died from
exhaustion and how many had to be shot for the reasons men-
tioned. One must realize that the number of prisoners was 200,000
so that the figure mentioned is not excessively high, considering
the condition of the prisoners in respect to health.

4. My division did not take any part in the partisan fighting
within the Army Group Rear Area on a large scale during the
march through this area. However, it is possible that parts of
the division engaged in operations against partisans during the

* Document reproduced above in this section.

893964—51 5

59

transfer march to the Crimea, when these operations took place
by chance in the areas passed on the march.

[Signed] Hans von Tettatj

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS
KARL SCHALL*

DIRECT EXAMINATION

Dr. Tipp (counsel for defendant von Roques) : Witness, will
you please state your full name?

Witness Karl Schall : My name is Karl Schall.

Q. How old are you?

A. Sixty-two years.

Q. What was your last rank in the German armed forces?

A. The rank of colonel.

Q. What is your profession?

A. I am a professional soldier, that is, originally. After the
First World War, I voluntarily quit the service and from 1920,
until 1933, I was working in industry. My last position was au-
thorized manager of a large machine factory. In 1933, during
the economic crisis of the time, I rejoined the armed forces upon
the request of former comrades.

Q. What assignments were you given during the last war?

A. First I was commander of Military District Sub-Area
[Wehrbezirk] Stuttgart No. 2. In 1940, I was assigned to a
newly activated division on the Upper Rhine as First General Staff
Officer. As First General Staff Officer, I participated in the attack
across the Rhine at Breisach. After the disbandment of this divi-
sion, I was transferred to the headquarters of Army Group A, as
a so-called “Leader of the Home Staff”; Army Group A, under
Field Marshal von Rundstedt, was located at the time in St. Ger-
main, near Paris.

Q. What was your sphere of work?

A. In case of an invasion of Great Britain, for which at that
time certain preparations had been ordered, the Home Staff at-
tached to Army Group A was to secure the supply for this inva-
sion after the army group headquarters were transferred to the
British Isles. After the preparations for the invasion of Great
Britain had been called off, I was transferred as, Second General
Staff Officer to the staff of the Army Group Command.

Q. You said previously that the headquarters of Army Group A
was in the surroundings of Paris. Did the Army Group remain in
this vicinity or was it transferred while you were on its staff?

* Complete testimony is recorded in the mimeographed transcript, 1 June 1948, pp. 6023-6093.
60

A. The Army Group Headquarters remained there for some time,
until the middle of April 1941. From the middle of April, the
staff was gradually transferred to Breslau. It was first called
“Working Staff Silesia.” When the camouflage was dropped, the

new name of Army Group South was adopted.
*******

Q. And now a special question regarding prisoner of war mat-
ters. Witness, in this connection, I will put a document to you.
It is NOKW-2423, Prosecution Exhibit 244. In this document you
will find an order by the High Command of the Army, that is,
from the Generalquartiermeister section of the High Command
of the Army, dated 24 July 1941. In this order the classification
of prisoners of war in certain camps is ordered to take place ac-
cording to certain aspects. Can you tell whether this classifica-
tion of prisoners of war was also effected in the camps of the Army
Group Rear Area and where this classification of prisoners of war
took place?

A. The segregation of prisoners of war according to certain
categories, for instance, separation of officers, noncommissioned
officers, and enlisted men, or a screening according to political
aspects, took place on principle during the interrogation of pris-
oners, that is, shortly after their capture, when they were still
with the [field] armies. In the PW transient camps they were
mainly classified according to their profession or occupations.
Segregations were also effected in the camps, but the main classi-
fication was according to their occupation, because this classifica-
tion naturally governed the assignment of prisoners of war for
labor.

Q. Now a more general question. Do you remember suggestions
from the staff of the Commander of Army Group South regarding
the amelioration of the position of the prisoners of war which
were transmitted to your staff?

A. Yes. I do. I do recall them. In the case of these suggestions,
they were usually about the improvement of the position of the
prisoners of war as regards housing, feeding, and sanitation.
Regarding the feeding, the Army Group, could not effect any
change on their own initiative because ration scales were uni-
formly laid down, at least for the whole of the eastern theater of
war by the Generalquartiermeister section of the High Command
of the Army. However, at a date which I can no longer recall,
probably at the approach of winter, following an application from
the Commander of the Army Group Rear Area, an increased ration
scale was asked for by the command of the Army Group, which,
as far as I recall, was approved by the High Command of the
Army and put into effect.

*******

61

Q. Colonel, we stopped at the problem of the suggestion which
the commander of the rear area had given in order to improve the
condition of the PW’s, and the last thing you stated was that the
suggestion for an increase in PW rations made by the Commander
of the Rear Area to the Army Group, went on to the High Command
of the Army and was later on approved. Now may I ask you to
continue with your description of the condition?

A. The health of the PW’s became worse as the cold weather
set in, and also that of the German troops too. The typhus epi-
demic began to get out of hand, the number of deaths increased
considerably, since there were not enough antityphus remedies
available. They were also in no way adequate even for the Ger-
man troops in order to bring the epidemic to an end. So the one
possibility in this sphere to bring about an improvement of con-
ditions was to separate the PW’s into smaller camps, along the
railways and along the roads, and to set up their accommodations
there in smaller camps as near as possible to their places of work,
and these camps had to be built by the PW’s themselves. In these
camps, of course, the accommodation and the hygienic welfare
could be arranged much better and more thoroughly. At the same
time the separation of the PW’s into smaller detachments over a
large area had to be regulated according to the needs for the em-
ployment of PW’s and the work which came into the question;
actually during the winter months an extensive improvement of
the PW conditions was achieved in this way. Complete suppres-
sion of the typhus epidemic and the losses resulting from this was
actually achieved, as was expected, when the warmer weather set
in, that was in 1942.

*******

62

3. KILLING OF "DISPERSED" SOLDIERS

PARTIAL TRANSLATION OF DOCUMENT NOKW-2538
PROSECUTION EXHIBIT 630

ORDERS TO SUBORDINATE UNITS, 21 AND 26 NOVEMBER 1941,
SIGNED BY DEFENDANT VON SALMUTH CONCERNING ANTIPARTI-
SAN WARFARE; AND IMPLEMENTATION INSTRUCTIONS THERETO
DISTRIBUTED BY SUBORDINATE 72d INFANTRY DIVISION,

28 NOVEMBER 1941

[Handwritten] Distributed: “K” 72d Division 150

[Stamp] Secret

Headquarters XXX Army Corps
Section Ia/Ic
No. 744/41 Secret

Corps Command Post, 21 November 1941
[Stamp] 72d Division
Received : 22 November 1941
Diary No. Ic 352/41 Secret
File No. 1434 Ic

la [Illegible initial]

Subject: Antipartisan warfare

*******

Corps Headquarters orders the following:
*******

6. The following is ordered pertaining to the control of the
civilian population :

*******

b. Every civilian and also every dispersed soldier who is found
in the possession of arms in the area of the XXX Army Corps is
to be shot immediately. This instruction also is to be made known
to the population through the Ortskommandanturen [local head-
quarters] .

*******

The Commanding General

[Signed] v. Salmuth

Distribution:

72d division down to all supply installations

Qu. for all Ortskommandanten [local commanders]

Rumanians (Motorized Regiment, Mountain Corps, Mountain
Brigade)

50th Division Corps and GHQ troops
Sonderkommandos 10a and 11a.

63

Headquarters XXX Army Corps

Section Ic No. 754/41 secret [Stamp]

72d Division
Ic 357/41 secret
Received: 27 November 1941
File No.: 1449 Ic.

[Illegible initial]

[Stamp] Secret

Corps Command Post, 26 November 1941
Subject: Antipartisan warfare

1. The incidents which happened during the past few days,
during which several German and Rumanian soldiers lost their
lives from attacks by partisans, require the most severe counter-
measures.

2. Therefore the following persons are to be taken as hostages
immediately in all localities where troops are stationed :

a. Persons whose relatives are partisans.

b. Persons who are suspected being in contact with partisans.

c. Party members, Komsomols, party candidates.

d. Persons who were formerly members of the Party.

e. Persons, who, prior to the entry of the German and Ru-
manian troops held any official functions, i.e., village magistrates
and deputies, members of the local Soviet, party officials of any
kind, directors of state institutions of any kind, sanatoria, etc.

/. Persons who are found outside the closed villages without a
special permit from the local commander.

3. These hostages are to be accommodated in concentration
camps. Their food must be supplied by the inhabitants of the
village.

4. Ten of these hostages are to be shot for each German and
Rumanian soldier killed by partisans, and one hostage is to be shot
for every German or Rumanian soldier wounded by partisans ; if
possible they are to be shot near the place where the German or
Rumanian soldier was killed, and then they are to be left hanging
at that place for 3 days.

5. The arrest of hostages in places where no troops are stationed
(especially in the mountains) is to be arranged by the 1st Ru-
manian Mountain Brigade. For this purpose these places are to
be temporarily occupied by troops.

For Corps Headquarters:

The Chief of Staff

[Signed] Botsch

64

Distribution : Only on the draft
F

[Handwritten] Distribution: “K”

Division Command Post, 28 November 1941
[Stamp] Secret

72d Infantry Division
Section Ic No. 358/41 Secret

Subject: Antipartisan warfare

Reference: Corps Hq. XXX Army Corps Ic No. 754/41 secret
(72d Infantry Division Ic No. 357/41 secret
26 November 1941

In addition to the general provisions in the above corps order
the following is ordered as supplement :

1. Concentration camps are to be set up in —

Kuchuk Muskomya by 124th Infantry Regiment
Alsu by the 1st Rumanian Mountain Infantry Regiment
Varnutka by 26th Infantry Regiment
Biyuk Muskomya by 105th Infantry Regiment
Haita (4 km west of Baidari) by the 14th Rumanian M.G.
Battalion

Baidari by 172d Artillery Regiment
Sachtik by 72d Engineer Battalion
Foros by 72d Antitank Battalion

2. Attached map tracing 1 : 100,000 shows the delineation of the
areas from where the hostages for the concentration camps con-
cerned are to be taken.

They are to be shot and hanged according to the key given in
the above-mentioned order, if attacks by partisans occur in the
area concerned.

3. The commanders who have to set up the concentration camp
are also responsible for the antipartisan warfare. When the com-
manders are relieved, the tasks are taken over by the successors.

4. The commanders appoint Ortskommandanten in the above
mentioned places and entrust them with the setting up of the
concentration camps. Arrest of the hostages and instruction of
the civilian population is carried out according to their orders.

*****> fc *

6. If supply troops, during transfer or on the march, tempo-
rarily occupy villages which had so far not been occupied, the unit
leader concerned is to arrest hostages immediately. When the

65

march is continued, these hostages are to be taken along and to
be handed over to the Ortskommandantur of the nearest place in
which troops are permanently stationed.
***** * *

Supplement — As Ortskommandanten, officers of those units are
to be selected, which remain permanently in the village concerned,
even after the infantry regiments are relieved.

1 enclosure

[Signed] Mattenklott

PARTIAL TRANSLATION OF DOCUMENT NOKW-1906
PROSECUTION EXHIBIT 247

LETTER FROM XXX ARMY CORPS (COMMANDED BY DEFENDANT VON
SALMUTH) TO SUBORDINATE UNITS, 7 AUGUST 1941, TRANSCRIBING
EXTRACTS FROM ARMY HIGH COMMAND REGULATION CONCERN-
ING TREATMENT OF ENEMY CIVILIANS AND RUSSIAN PRISONERS
OF WAR, 25 JULY 1941

War Diary

[Handwritten] Enclosure 77

Corps Headquarters, 7 August 1941

Corps Headquarters XXX Army Corps
Quartiermeister No. 331/41 Secret

Secret

The following copy forwarded for your information and guid-
ance.

The army is preparing and will shortly distribute posters order-
ing dispersed Russian soldiers still roving in the rear area in
uniform or civilian clothes to report to the nearest German armed
forces office.

For Corps Headquarters:
The Chief of the General Staff
By order :

[Illegible signature]
Major, GSC

Distribution :

Down to battalions and on the premises.

66

Secret

Copy of extracts from the regulation High Command of the
Army, general for special missions with the Commander in Chief
of the Army, file No. 453, group legal affairs No. 1332/41 secret,
25 July 1941.

Subject: Treatment of enemy civilians and Russian prisoners of
war

The great expanse of the areas of operation in the East, and the
cunning and peculiar character of the Bolshevist enemy, call for
especially extensive and effective measures from the very begin-
ning — particularly in the purely Russian territories — for the con-
trol of the conquered territories and the exploitation of the
country.

It has become known, that the requisite harshness has not been
applied everywhere. This is partly due to the insufficient instruc-
tion of newly assigned and committed authorities and troops. The
change of offices must in no circumstances interrupt or jeopardize
the mission.

The Commander in Chief of the Army has therefore ordered
that attention be emphatically drawn once again to the following
aspects :

The guiding principle in every action and for all measures to
be taken must be the idea of absolute security for the German
soldier.

I. Treatment of enemy civilians

The Russian always has been used to harsh and ruthless action
by those in authority. The necessary speedy pacification of the
country can be achieved only if every mere threat from the enemy
civilian population is ruthlessly stopped. Any leniency and soft-
ness is weakness and means danger.

The proposed commitment of partisan detachments in our own
rear area, the call for the formation of bands among youths, and
the whole insidious actions of the supporters of the Jewish-Bolshe-
vist system indicate that guerrilla warfare can be expected to
revive even in the areas hitherto quiet. Attacks and activities on
the part of the enemy population directed particularly against
individual soldiers, such as messengers, installations in the rear,
mopping-up detachments, resistance, destruction of historic build-
ings, blowing up of bridges, damaging of main traffic routes, and
other acts of sabotage will ensue.

Attacks and all kinds of acts of violence against persons and
objects, as well as all attempts, are to be ruthlessly suppressed by
use of arms until the enemy is destroyed.

67

In cases of passive resistance oi' road blocks, shootings, raids,
or other acts of sabotage where the culprits cannot be determined
at once and liquidated in the manner already ordered, collective
coercive measures are to be carried out without delay by order of
an officer not below the rank of a battalion commander. It is
specifically pointed out that a previous arrest of hostages for
future offenses is not necessary. The population is held respon-
sible for order in their areas even without special previous an-
nouncement and arrest.

Attacks and assaults on indigenous inhabitants assigned by us
to work (for instance road construction, agriculture, trades, fac-
tories), and on supervising personnel, constitute attacks on the
occupation forces and are to be punished as such.

Dispersed Russian soldiers who are still roving about in the
rear area in uniform or civilian clothes and who, individually or
by forming bands might become a danger to the pacified country,
are to be ordered by public announcement (posters, radio) to re-
port immediately to the nearest German armed forces office. If
they fail to comply, they are to be considered guerrillas as from
a certain date, to be fixed in each area, and are to be treated as
such.

Any encouragement or aid to partisans, dispersed persons, etc.,
on the part of the civilian population is to be punished as guerrilla
activity in the same manner.

Suspected elements who, although they cannot be proved guilty
of a serious crime, seem dangerous because of their opinions and
behavior are to be handed over to the Einsatzgruppen or the Kom-
mandos of the Security Police (Security Service). The moving
about of civilians without travel authorization must be stopped.

Order and pacification in an area is achieved most quickly and
surely if it is possible to get the civilian inhabitants to work.
Therefore, all possibilities are to be utilized and all measures to
this effect are to be emphatically supported.

Every commander and commandant — down to the last Ortskom-
mandant — must be quite clear in his own mind that these are
acute matters, which require the speediest and most energetic
action in every case. He must feel personally responsible for the
complete execution of the requisite measures.

II. Supervision of prisoners of war

The diligent and obedient prisoner of war is to be treated de-
cently. Anyone violating the regulations, however, is to be pun-
ished according to his offense.

It is in accordance with the prestige and the dignity of the
German Army, for every German soldier to keep the necessary

68

distance from and that hearing towards Russian prisoners of war
which is in keeping with animosity and inhuman brutality of the
Russians during the fighting.

Any leniency or even fraternization is to be punished most
severely. The feeling of pride and superiority must be evident at
all times.

The regulations of 17 January 1936, concerning the use of arms
on the part of the armed forces can only apply with limitations,
since they are based on generally peaceful conditions during inter-
vention inside Germany. Where it is necessary to put down dis-
obedience, rebellion, etc., arms are to be used immediately. In
particular, escaping prisoners of war are to be fired upon imme-
diately without previous warning. Any belated use of arms may
be dangerous. On the other hand any arbitrary action is for-
bidden.

The Chief of the High Command of the Army expects these
directives to suffice to bring home most emphatically the signifi-
cance of the tasks to all authorities.

By Order :

Certified copy : Signed : Mueller

[Signed] Palm
1st Lieutenant

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS
FRANZ MATTENKLOTT*

DIRECT EXAMINATION

Dr. Gollnick (counsel for defendant von Salmuth) : General,
please state your full name for the Tribunal.

Witness Mattenklott: Franz Mattenklott, M-a-t-t-e-n-

k-l-o-t-t.

Q. When were you born?

A. On 19 November 1884.

Q. What are you by profession, and what was your last military
rank?

A. I am a professional officer, lieutenant general of the infantry.
Q. How long have you known General von Salmuth ?

A. From the years 1932 and 1933, when General von Salmuth
was Chief of the General Staff [of the 2d Infantry Division] in
Stettin.

Q. When and in what capacity were you subordinate to Gen-
eral von Salmuth during the Second World War?

* Complete testimony is recorded in mimeographed transcript, 19 May 1948, pp. 4233—1274.

69

A. During the Second World War, I was subordinate to General
von Salmuth in my position as divisional commander of the 72d
Infantry Division from 8 September 1941 onward, until 15 Decem-
ber 1941, altogether three months.

Q. I will now put to you Document NOKW-2538, Prosecution
Exhibit, 630,* and I should like to ask you to have a look at that
document and to tell the court what sort of a document it is.

A. This is a document referring to antipartisan fighting. The
orders which are contained therein were not new to us because
from the time of the First World War we had had certain expe-
riences in the Pripet marshes so that I would feel inclined to
assume that these orders were taken over in substance and mean-
ing from the time of the First World War.

Q. Were the measures set down in this order against the parti-
sans necessary and justified?

A. I consider that these measures were necessary and justified.
The troops welcomed them. They now had something tangible to
go by and they could act accordingly.

Q. What sort of precautionary measures were provided in order
to finish the partisan fighting without bloodshed? If you would
perhaps look at paragraph 5 a, g, and h, you might tell us something.

A. Local commanders were appointed in all localities who were
responsible for the antipartisan fighting being carried out in an
orderly manner. In addition there were the troops commanders
who were mainly concerned with the actual fighting.

Q. What is stated in 5 a, if you would tell us, in 5 a, g, and hi

A. ha, g, and hi

Q. Yes.

A. The population was being called upon to report the partisans
bands, in addition they were to inform the partisans to report
voluntarily to the German authorities, and to deliver up their arms
and knives. It was even announced that rewards would be given
to anybody making such a report. Moreover, the provisions con-
cerning antipartisan fighting were publicly announced by way of
posters and by way of announcements to the mayor. The army
appointed patrols and guards to the various localities, which moved
around from one locality to another in mutual agreement.

Q. In paragraph 66 it is said that every civilian and dispersed
soldier also, who was found in the area of the XXX Corps with
arms was to be shot on the spot. Why was this provision made
and to what extent was it militarily necessary?

A. A civilian during wartime behind the front line carrying
arms is an impossibility. If such a person is found anywhere one

* Document reproduced in part earlier in this section.

70

has to assume that he has something evil in mind. 1 believe even
a nonmilitary man knows that it is unthinkable and punishable
in wartime for him to carry arms. To that extent therefore, I
think these paragraphs were merely included in the order to recall
to the population that the carrying of arms is a punishable offense.
As far as the dispersed soldiers were concerned, the situation was
somewhat similar. If I have lost my own unit and find myself
behind the enemy lines, I can no longer fight as an honest soldier.
Instead such a person must necessarily have something evil in
mind because otherwise he would just throw away his weapons.
Why should such a man, an isolated dispersed soldier behind the
front lines need a weapon ? He could only need it in order to harm
our own, that is the German Armed Forces. That is why this
order was given, in my opinion.

Q. Did you learn that pursuant to that provision such civilians
or dispersed soldiers were in actual fact shot?

A. I did not hear of any such instance, at any rate not in the
area of my division. I gained knowledge of no cases in which
civilians were shot. Particularly in our area, in the Crimea, the
population was certainly for the most part friendly to the Ger-
mans. There were German colonies there, where not one Russian
word was spoken. Therefore, this measure can be regarded merely
as a precautionary order.

Q. If I understand you correctly you mean by “precautionary”
that it was a deterrent?

A. Yes.

Q. Was that order made sufficiently well known? You can find
an answer to that in the order itself if you care to look at it.

A. Yes. That order was adequately announced by posters. That
ought to be stated here somewhere.

Q. I believe under paragraph 5 b [66].

A. Yes. By posters exhibited for the benefit of the population,
and I remember also that in conferences with the local village
spokesmen this fact was announced.

* * * * j|e sj:

EXAMINATION

Judge Hale: What is your definition of a dispersed soldier?

Witness Mattenklott: A soldier is considered dispersed if
he is behind the front lines and no longer in a position to serve his
country, with his weapons ; but has to act independently.

Q. Well, would any division that was cut off from the main body
be counted as dispersed soldiers?

A. No.

Q. Well where does the line begin?

71

A. The practice of war has shown, after we experienced the
dropping of parachutists from planes, that this particular point
has not been clearly defined in international law because interna-
tional law, as far as I know, was created at a time when behind
the front lines hardly any soldiers could be found with their
weapons in their hands. I believe it is very difficult to give a
definition about such a term. I, for instance, would throw away
my weapon if I found myself behind the front lines, if only for
the sole reason that I did not want to become a partisan suspect
and run the danger of being treated as a partisan, and thus give
the enemy a reason for shooting me.

Q. Weren’t there times when whole German armies were cut
off and behind the Russian lines ?

A. Well, I don’t think it applies to that, because in every war
there were fortresses that were cut off behind the front lines. This
refers to a man who has no longer any chance of combating the
enemy, and is strictly on his own initiative, and not under specific
orders or control of his unit, and is not in a position to fight in
a decent soldierly manner.

Q. Suppose a company were cut off, should he forthwith sur-
render his arms or try to fight back to his command?

A. No. A company is a closed unit and has to try to fight its
way back to its main body, even if there is only a one percent
chance.

Q. Suppose a detail under a sergeant is sent out and cut off
behind the enemy lines, should it throw down its arms or try to
rejoin its command?

A. No.

Q. No what?

A. They should keep their arms because they are to try and
fight their way back to their own lines. If for any reason they
believe that they can no longer fight, because the situation has
become hopeless, then there is only one thing to do — hands up,
abandon arms.

Q. Well, then, if a squad of five men, under a corporal, is sent
out and is cut off behind the enemy lines, what is their duty? To
try to rejoin their company or to lay down their arms?

A. No. They are not to throw down their arms since they are
a unit, a patrol, and since they were sent off as such they are to
exploit every possibility to find their way back through the enemy
lines to their own lines.

Q. Well, we still don’t have a very clear definition of what a
dispersed soldier is. Does it apply to individuals?

A. I am afraid I cannot render a definition; that will have to
be decided for each individual case separately, according to the

72

I conditions of the case. Nobody, I believe, can give you a general
definition.

Q. To pass to another subject. When did you first learn that

( the Security Service was being used as extermination groups
against Jews, Communists, and other undesirable elements?

A. An order for the extermination of the Jews —

Q. No. My question was : When did you first learn the Security
Service — just a minute — when did you first learn the Security
Service was being used as extermination units against Jews, Com-
munists, and other undesirable elements?

A. I learned of the existence of the Security Service when I was
a prisoner. That certain people were to be eliminated. I know
from the Commissar Order. About Jews I know nothing at all.

Q. And you knew nothing of the use of the Security Service
as extermination groups, until the surrender when you were made
prisoner ?

A. No. I knew nothing, nothing.
*******

4. THE COMMANDO ORDER

TRANSLATION OF DOCUMENT 498-PS
PROSECUTION EXHIBIT 124

THE "COMMANDO ORDER", 18 OCTOBER 1942, SIGNED BY HITLER
WITH A NOTE BY THE DEFENDANT WARLIMONT CONCERNING
DISTRIBUTION OF ORDER

[Stamp] DRAFT

Fuehrer Headquarters, 18 October 1942

The Fuehrer

No. 003830/42 Top Secret

OKW/ Armed Forces Operations Staff

23 copies — 23d copy
[Stamp] Top Secret

1. For some time our enemies have been using in their warfare
methods which are outside the international Geneva Convention.
Especially brutal and treacherous is the behavior of the so-called
commandos who, as is established, are partially recruited even
from ex-convicts in enemy countries. Captured orders reveal that
they are directed not only to shackle prisoners, but also to kill

73

defenseless prisoners whenever they believe that prisoners burden
them or otherwise constitute a hindrance to the fulfillment of their
mission. Finally, orders have been found in which the killing of
prisoners has been required as a standard practice.

2. For this reason it has already been announced in an adden-
dum to the armed forces communique of 7 October 1942, that in
the future, Germany in the face of these sabotage troops of the
British and their accomplices, will resort to the same procedure,
i.e., that they will be ruthlessly mowed down by the German troops
in combat, wherever they may appear.

3. I therefore order:

From now on all enemies on so-called commando missions in
Europe or Africa challenged by German troops, even if they are
to all appearances soldiers in uniform or demolition troops,
whether armed or unarmed, in battle or in flight, are to be
slaughtered to the last man. It does not make any difference
whether they are landed from ships or aeroplanes for their ac-
tions, or whether they are dropped by parachute. Even if these
individuals when found should apparently be prepared to give
themselves up, as a matter of principle, no pardon is to be granted
them. In each individual case full information is to be sent to the
OKW for publication in the armed forces communique.

4. If individual members of such commandos, such as agents,
saboteurs, etc., fall into the hands of the military forces by some
other means, through the police in occupied territories for in-
stance, they are to be handed over immediately to the Security
Service. Any imprisonment under military guard, in PW stock-
ades for instance, etc., is strictly prohibited, even if this is only
intended for a short time.

5. This order does not apply to the treatment of any enemy
soldier who, in the course of normal hostilities (large-scale of-
fensive actions, landing operations, and airborne operations) are
captured in open battle or give themselves up. Nor does this
order apply to enemy soldiers falling into our hands after battles
at sea, or enemy soldiers trying to save their lives by parachute
after combat.

6. I will hold responsible under military law, for failing to
carry out this order, all commanders and officers who either have
neglected their duty of instructing the troops about this order,
or acted against this order where it was to be executed.

[Signed] Adolf Hitler
Certified :

[Signed] Kipp

Major

74

The original decree (signed by the Fuehrer — copies 1 and 3)
sent subsequently on 20 October 1942 to the General Staff of the
Army and the High Command of the Air Force/Air Force Opera-
tions Staff, (original copies 4-11 destroyed)

Distribution :

General Staff of the Army, 1st copy

Chief of Army Armament and Commander of Replacement
Army, 2d copy

Naval High Command/Naval War Staff, 3d copy

Air Force High Command/Air Force Operations Staff, 4th copy

Armed Forces Commander Norway, 5th copy

Armed Forces Commander Netherlands, 6th copy

Armed Forces Commander Southeast, 7th copy

Armed Forces Commander Ostland, 8th copy

Armed Forces Commander Ukraine, 9th copy

Commander in Chief West, 10th copy

20th Mountain Army, 11th copy

Commander of German troops in Denmark, 12th copy
Commander in Chief South, 13th copy
Panzer Army Africa, 14th copy

German General with the Italian High Command, 15th copy
Reich Leader SS and Chief of German Police, and also Main
Office of the Security Police, 16th and 17th copies
OKW/General Armed Forces Office, 18th copy
Office Foreign Counter Intelligence, 19th copy
Armed Forces Legal Department, 20th copy
Armed Forces Propaganda, 21st copy

Armed Forces Operations Staff /Ops. (Army) War, (Navy)
Diary, (Air Force), 22d copy
Org. Qu. (also draft), 23d copy

Note on distribution — This order is not to be distributed beyond
the battalions and equivalent staffs of the other branches of the
armed forces. After having been noted, copies distributed beyond
the regiments and the equivalent staffs of the other branches of
the armed forces are to be collected and destroyed.

[Initial] W [Warlimont]

[Handwritten] On 25 February 43 (M 916) copy sent to Air Force
High Command (Air Force Legal Dept.; on 5/12/43 copy to Qu
(Admin. 2). On 5/4/44 copy to General Staff of the Army, Legal
Dept.

1 Copy to Armed Forces Legal Dept, on 2/6

893964—51 6

75

[Handwritten] Note — Upon telephone request from adjutant to
the Reich Leader SS (Miss Fenske, Berghof 370) and after con-
ference with Chief Qu. distribution of 8 copies to subordinated
offices approved according to request, and with instruction that
these offices must collect and destroy all copies which have been
distributed further down, if any.

17/11 [Initials] Ki [Kipp]

TRANSLATION OF DOCUMENT 503-PS
PROSECUTION EXHIBIT 125

LETTER FROM OKW, 19 OCTOBER 1942, TRANSMITTING SUPPLEMENT
TO COMMANDO ORDER SIGNED BY HITLER

[Stamp] Top Secret
High Command of the Armed Forces
Armed Forces Operations StafF/Quartiermeister
No. 55 1781/42 Top Secret
Matter for Chiefs

Fuehrer Headquarters, 19 October 1942

22 copies — 21st copy

[Stamp]

Top Secret
Through officer only

As an addition to the decree concerning the destruction of terror
and sabotage units (OKW /Armed Forces Operational Staff No.
003830/ /2 Top Secret, dated 18 October 19/2) a supplementary
order of the Fuehrer is enclosed.

This order is intended for commanders only and must not under
any circumstances fall into enemy hands.

The further distribution is to be limited accordingly by the re-
ceiving agencies.

The agencies named in the distribution list are held responsible
for the return and destruction of all distributed copies of the order
and extra copies made thereof.

By order:

The Chief of the High Command of the Armed Forces

[Signed] Jodl

1 enclosure

(Distribution [list] — over)

76

Distribution :

General Staff of the Army, 1st copy

Chief of Army Armament and Commander of Replacement
Army, 2d copy

High Command of the Navy, Naval War Staff, 3d copy
High Command of the Air Force Operations Staff, 4th copy
Armed Forces Commander Norway, 5th copy
Armed Forces Commander the Netherlands, 6th copy
Armed Forces Commander the Southeast, 7th copy
Armed Forces Commander Ostland, 8th copy
Armed Forces Commander Ukraine, 9th copy
Commander in Chief West, 10th copy
20th Mountain Army, 11th copy

Commander Officer of German troops in Denmark, 12th copy
Commander in Chief South, 13th copy
Panzer Army Africa, 14th copy

German General with the Italian High Command, 15th copy
Reich Leader SS and Chief of German Police and Main Office
of the Security Police, 16th and 17th copies
High Command of the Armed Forces:

Office Foreign Counterintelligence, 18th copy
Armed Forces Legal Department, 19th copy
Armed Forces Propaganda, 20th copy

Armed Forces Operations Staff, Quartiermeister (draft, in
21st copy)

War Diary, 22d copy

[Stamp]

Top Secret
Through officer only

The Fuehrer and Supreme Commander of the Armed Forces

18 October 1942

I have been compelled to issue a strict order for the destruction
of enemy sabotage troops and to declare noncompliance with this
order severely punishable. I deem it necessary to announce to
the competent commanding officers and commanders the reasons
for this decree.

In this war as in no previous one, a method has been developed
of destruction of communications behind the front, intimidation
of the populace working for Germany, as well as the destruction
of war-important industrial plants in territories which we have
occupied.

In the East, as early as last winter this type of combat in the
form of partisan warfare led to severe encroachments upon our
fighting strength and cost the lives of numerous German soldiers,

77

railroad workers, members of the Organization Todt, the labor
service, etc. It severely interfered with and sometimes delayed
for days the transportation necessary for the maintenance of the
fighting strength of the troops. By a successful continuation or
perhaps even intensification of this form of warfare, a grave crisis
might develop at one or another point along the front. Many
measures against these cruel as well as insidious sabotage activi-
ties have failed, simply because the German officer and his soldiers
were unaware of the great danger confronting them and, there-
fore, in individual cases did not act against these enemy groups
as would have been necessary in order to help the forward echelons
at the front and thereby the entire conduct of the war.

It was, therefore, to some extent necessary to organize special
units in the East who mastered this danger, or to assign this task
to special SS formations.

Only where the fight against this partisan nuisance was begun
and executed with ruthless brutality were results achieved which
eased the situation on the fighting front.

In all Eastern territories the war against the partisans is there-
fore a struggle for the absolute annihilation of one or the other
side.

As soon as the realization of this fact becomes common knowl-
edge among the troops, they will regularly be able to cope with
these occurrences quickly; otherwise their efforts will achieve no
decisive results and will become purposeless.

England and America have decided upon a similar kind of war-
fare even though under a different name. While the Russians
attempt to put partisan troops behind our front via the land routes
and only in exceptional cases use air transportation to land men
and supplies, England and America use this method of warfare
primarily by landing sabotage troops from submarines or pneu-
matic rubber boats, or by dropping parachute agents. Essentially,
however, this form of warfare does not differ from the activities
of the Russian partisans. For it is the task of these units —

1. To build up a general espionage service with the assistance
of willing indigenous inhabitants.

2. To organize groups of terrorists and supply them with the
necessary weapons and explosives.

3. To undertake sabotage activities which by the destruction of
traffic installations not only continuously disrupt our communica-
tions, but also, when things become serious, make troop move-
ments absolutely impossible and eliminate our communication
system.

Finally, these units are to make attacks on war-important in-
stallations, in which, according to a scientifically worked out pro-

78

gram, they blow up key plants, thereby forcing whole industries
into idleness.

The consequences of these activities are extraordinarily serious.
I do not know whether every commander and officer is aware of
the fact that the destruction of one single electric power plant,
for instance, can deprive the air force of many thousands of tons
of aluminum, thereby eliminating the construction of countless
aircraft; these aircraft will be lacking at the front, and in this
way serious damage will result to the homeland as well as bloody
casualties to the fighting soldiers.

Yet this form of war is completely without danger for the ad-
versary. Since he lands his sabotage troops in uniform and at
the same time supplies them with civilian clothes, they can appear
as soldiers or civilians according to need. While they themselves
have orders ruthlessly to eliminate any German soldiers or even
indigenous inhabitants who get in their way, they run no danger
of suffering really serious losses in their operations, since at the
worst, if they are caught, they can immediately surrender and thus
as they think, theoretically fall under the provisions of the Geneva
Convention. There is no doubt, however, that this is misuse in the
worst form of the Geneva agreements, especially since some of
these elements are even criminals liberated from prisons, who can
rehabilitate themselves through these activities.

England and America will therefore always be able to find vol-
unteers for this kind of warfare, as long as these volunteers can
be rightly told that their life is not imperiled. At worst, all they
have to do is to attack people, traffic installations, or other installa-
tions successfully, and upon being encountered by the enemy, to
surrender.

If the German conduct of war is not to suffer grievous damage
through these incidents, it must be made clear to the adversary
that all sabotage units will be exterminated without exception to
the last man.

This means that their chance of escaping with their lives is nil.
Under no circumstances can it be permitted therefore that a dyna-
mite, sabotage, or terrorist unit simply allows itself to be cap-
tured, expecting to be treated according to rules of the Geneva
Convention. The unit must under all circumstances be ruthlessly
exterminated.

The report on this subject appearing in the armed forces com-
munique will briefly and laconically state that a sabotage, terror,
or destruction unit has been encountered and exterminated to the
last man.

I, therefore, expect'the commanding officers of armies as well
as individual commanding officers not only to realize the necessity

79

of taking such measures, but also to carry out this order with all
energy. Officers and noncommissioned officers who fail through
some weakness are to be reported without exception, or in certain
circumstances — when there is danger in delay — to be called to
strict account at once. The homeland as well as the fighting sol-
diers at the front has the right to expect that behind their backs
the essentials of nourishment as well as the supply of war-impor-
tant weapons and ammunition remain secure.

These are the reasons for the decree I have issued.

If it should become necessary, for reasons of interrogation, to
spare one or two men temporarily, then they are to be shot imme-
diately after interrogation.

[Signed] Adolf Hitler

PARTIAL TRANSLATION OF DOCUMENT 1263-PS*
PROSECUTION EXHIBIT 122

TWO DRAFTS OF MEMORANDUM ON COMMANDO ORDER, 14 AND
15 OCTOBER 1942, SIGNED BY WARLIMONT, TRANSMITTING DRAFT
OF COMMANDO ORDER AND TELETYPE MESSAGE FROM CANARIS'
OFFICE, 10 OCTOBER 1942, ON SAME SUBJECT

[Page 5 of original document.]

14 October 1942

Armed Forces Operations Staff/Quartiermeister (Adm.)

Subject: Combating enemy sabotage troops
Note for an oral report

As ordered, a draft order concerning the combating of terror
and sabotage units is submitted herewith. A counterdraft of the
Office Foreign Counterintelligence is contained in the teletype of
10 October, with handwritten corrections made in accordance with
the teletype of 13 October.

In agreement with the Chief of the Armed Forces Legal Depart-
ment it is pointed out that the attached order can have repercus-
sions which can obstruct our intentions as to the future conduct
of the war.

Reasons — Sabotage has become an essential part of warfare in
the age of total war. In this respect it is sufficient to point out

* See Nazi Conspiracy and Aggression, op, cit. supra, vol. Supp. A, pp. 362-367, for a more
complete translation of document.

80

our own attitude. Proof can be gathered by the enemy from
reports of our own propaganda companies.

Therefore, in agreement with the Chief of the Armed Forces
Legal Department, the motion is made to hold a discussion at the
Armed Forces Operations Staff, at which the Chief of the Office
Foreign Counterintelligence, the representatives of Armed Forces
Propaganda and Armed Forces Legal Department should take
part in order to ascertain in a discussion to what extent the goal
can be reached of fighting against the sabotage warfare of the
enemy without considerably impairing our own effort. At the
meeting, the points should be discussed which appear in the en-
closure. Telephonic discussion is not feasible because the answers
to the questions under discussion would permit conclusions about
our future operational intentions. The Chief of Armed Forces
Legal Department does not expect that anything will be gained
by a preliminary discussion with the Office of Foreign Counter-
intelligence. To prevent enemy use of sabotage troops, the fol-
lowing questions must be clarified before an order is formulated :

1. Do we ourselves intend to use sabotage units only in the
operational zone of the enemy, or also farther to the rear?

2. Who will commit more sabotage troops, the enemy or we ?

3. Can we establish the principle: Sabotage troops do not use
permissible means of combat ; they are to be liquidated in combat
without mercy?

4. Do we attach importance to arresting individual members of
these troops first for interrogation by counterintelligence instead
of killing them immediately?

[Pages 3 and 4 of original document.]

15 October 1942

Armed Forces Operations Staff /Quartiermeister (Adm.)

[Handwritten] Check distribution (WR and Abwehr)

Subject: Combating enemy sabotage troops

[Initial] W [Warlimont] 18/10
Disposed of 15/10

Note for an Oral Report

Following the radio announcement of 7 October 1942, WFSt
asked the Office Foreign Counterintelligence and WR to suggest
an order carrying it out.

81

The suggestion of the Office Foreign Counterintelligence is sub-
mitted as enclosure 1.

Position of Armed Forces Operations Staff. — The suggestion is
not in accordance with the above-mentioned radio announcement
and is too strongly influenced by the particular interests of the
Office Foreign Counterintelligence, especially Counterintelligence
II.

The Chief of Armed Forces Legal Department has expressed the
opinion that the order should be drawn up so that our own inter-
ests, bearing in mind future operations, should be considered
therein. In this way he wants to avoid repercussions which could
obstruct our further intentions. Sabotage is an essential part of
the conduct of war during total war; we ourselves have strongly
developed this method of warfare.

[Handwritten] But the English need it far more. J. [Jodi]

To draw up such an order, however, it is necessary to clarify
preliminary questions; he could approach these only in a personal
conference, if possible together with the Chief of the Office Foreign
Counterintelligence at the Armed Forces Operational Staff. A
telephonic discussion was out of the question because of the neces-
sary treatment of future intentions.

Only then could one explain to the troops which sabotage troops
should be regarded as bandits.

Position of Armed Forces Operations Staff — The intention of
liquidating in the future all terror and sabotage units has already
been made public over the radio. Therefore, the only task of the
Armed Forces Operations Staff is to issue definite instructions
how the troops are to proceed against terror and sabotage units.

The question of the publication of this order, which was raised
by Armed Forces Legal Department needs no further discussion
since the publication of the principle in the Armed Forces com-
munique of 7 October should be sufficient from the standpoint of
its deterring effect.

Armed Forces Operations Staff therefore proposes the order as
submitted in the enclosure 2.

[Signed] Warlimont

82

[Page 6 of original document.]

Enclosure 1
Copy of Extracts

From teletype KR
GWOKA 02822

10 October 1942, 1430 hours
Received : 10 October, 1625 hours

[Stamp] Top Secret
To Armed Forces Operations Staff

Subject: Treatment of British terror and sabotage troops

A. Members of terror and sabotage troops of the British Army
who are found, contrary to the rules of warfare, without uniform
or in German uniform will be treated as bandits. During battle
or in flight, they are to be shot without mercy. If military neces-
sity calls for their temporary arrest or if they fall into German
hands outside of military operations, they are to be led at once
before an officer for interrogation. Thereafter they are to be tried
before a Standgericht [summary court martial].

[Handwritten by Jodi] No.

B. Uniformed members of terror and sabotage troops of the
British Army who, in the opinion of the unit are guilty of dis-
honorable conduct or of activities contrary to international law,
shall be put under separate arrest after their capture. Armed
Forces Operations Staff has to be notified immediately about their
behavior. Directives concerning their treatment will be issued by
Armed Forces Operations Staff in agreement with Armed Forces
Legal Department and the Office Foreign Counterintelligence.

[Handwritten] No good either. J. [Jodi]

OKW Office Foreign Counterintelligence
No. 00381/42 Top Secret
Foreign 1 G 1 b(5)

[Page 7 of original document.]

Enclosure 2

Fuehrer Headquarters, the October 1942

The Chief of the High Command of the Armed Forces

No. 00 42 top secret, Armed Forces Operations Staff/Quartier-

meister (Adm.)

[Stamp] TOP SECRET

Copies

Copy

1. The addendum to the* armed forces communique of 7 Octo-
ber 1942, announced that in future all terror and sabotage units
of the British and of their associates who do not act like soldiers
but like bandits will be ruthlessly exterminated in combat when
and wherever they appear.

2. In future, an attitude on the part of terror and sabotage units
contrary to the rules of war has always to be assumed if (outside
the battlefield proper [crossed out in original] individual attackers
as saboteurs (X) (commit acts deviating from the basic rules of
war, such as murder or the destruction of valuable property
[crossed out in original] thus placing themselves outside the laws
of war.

3. In these cases the aggressors are to be annihilated in combat
or in flight to the last man without mercy.

4. (XX) Confinement in PW camps even temporarily is pro-
hibited.

5. This order is not to go down beyond army level ; from there
on, it is to be announced orally. The order has to be destroyed
after its contents have been noted.

(X) or agents , no matter whether soldiers or in whatever (not in [crossed
out in original]) uniform carry out acts of violence or surprise raids which
in the opinion of their captors deviate from the basic rules of warfare .

4. (XX) If military necessity demands the temporary arrest of individual
participantSj after military screening they are on principle to be handed over
to the Security Service.

* All words in italic in this document represent ink corrections made on the original docu-
ment in Warlimont’s handwriting, cf. Warlimont testimony in defense evidence in this section.

84

PARTIAL TRANSLATION OF DOCUMENT 523-PS
PROSECUTION EXHIBIT 123

DRAFT OF COMMANDO ORDER WITH HANDWRITTEN COMMENTS
BY JODL, OCTOBER 1942

Enclosure 2

[Handwritten] 1st Draft
(Armed Forces Operations Staff/Quartiermeister)

The Chief of the High Command of the Armed Forces
No. 00 /42 Top Secret

Armed Forces Operations Staff/Quartiermeister (Adm.)

Fuehrer Headquarters, _ - October 1942

Copies

Copy

File under “ Reprisals ’’

J. [Jodi]

1. The addendum to the armed forces communique of 7 October
1942, announced that in future all terror and sabotage units of the
British and of their associates who do not act like soldiers but like
bandits will be ruthlessly exterminated in combat (when and
[crossed out in original] ) wherever they appear.

2. In future, an attitude on the part of terror and sabotage units
contrary to the rules of war is always to be assumed if individual
attackers as saboteurs or agents, no matter whether soldiers or in
whatever uniform, carry out acts of violence or surprise raids
which (in the opinion of their captors [crossed out in original] )
deviate from the basic rules of open and honorable warfare, thus
placing themselves outside the laws of war. In judging such cases,
a strict standard is to be applied.* X

3. In these cases the aggressors are to be annihilated in combat
or in flight to the last man without mercy.

4. If military necessity demands the temporary arrest of indi-
vidual participants, after military screening they are on principle
to be handed over to the Security Service. Confinement in PW
camps, even temporarily, is prohibited. XX

5. This order is not to go down beyond (army [crossed out in
original] ) corps level ; from there on, it is to be announced orally.

* All words in italic on this reproduction appear on the original document in Jodi’s hand-
writing, cf. Warlimont testimony in defense evidence below in this section.

85

The order has to be destroyed after its contents have been noted
and only to be kept by operational staffs of the Wehrmacht
branches. [Initial] W [Warlimont]

X Especially as the publication of the OKW [order] dated about which
the troops have to be instructed reveals the ruthless and brutal manner in
which British troops have behaved toward defenseless German soldiers in
every theater of war .

XX In these cases t everything possible must be done to prevent the arrest
of such persons from becoming known to troops not directly involved t much
less to the population .

Distributed :

PARTIAL TRANSLATION OF DOCUMENT NOKW-1737
PROSECUTION EXHIBIT 126

COVERING LETTER FROM HIGH COMMAND OF THE ARMY, 21 OC-
TOBER 1942, DISTRIBUTING COMMANDO ORDER TO UNITS IN THE

EAST

[Stamp] Top Secret

High Command of the Army

Army General Staff/Operations Section (la)

No. 6595/42 Top Secret

Headquarters, High Command of the Army, 21 October 1942

55 copies — 10th copy

[Handwritten] taken care of

[Stamp] To Army Group B, la No. 3639, 42, Top Secret

Enclosed is forwarded an order from the Fuehrer concerning
the destruction of terror and sabotage units (OKW/Armed Forces
Operations Staff No. 003830/42, Top Secret, dated 18 October
1942).

The order is not to be distributed beyond battalion staff. After
having been noted, the copies issued via regimental headquarters
to lower echelons are to be collected and destroyed.

Headquarters of our allies are to be informed only orally about
the order through the chiefs of the liaison staffs, according to in-
structions from the Army Group Commands.

By order :

[Signed] Zeitzler

1 Enclosure.*

* Text of the Commando Order not reproduced here. See Document 498-PS, Pros. Ex. 124
(reproduced above in this section) for text.

86

Distribution :

Army Group A, 1st copy
with extra copies for —

Commander of the Crimea, 2d copy
17th Army, 3d copy
1st Panzer Army, 4th copy
Commander Army Group Area A, 5th copy

Army Group B, 6th copy
with extra copies for —

4th Panzer Army, 7th copy
6th Army, 8th copy
2d Army, 9th copy

Commander Army Group Area B, 10th copy [underlined by
hand]

German General with the 2d Hungarian Army, 11th copy
German General with the 8th Italian Army, 12th copy
Chief of the Liaison Staff to the 3d Rumanian Army, 13th
copy

Army Group Center, 14th copy
with extra copies for —

2d Panzer Army, 15th copy
4th Army, 16th copy
3d Panzer Army, 17th copy
9 th Army, 18th copy

Group-General von der Chevallerie, 19th copy
Commander Army Group Area Center, 20th copy

Army Group North, 21st copy
with extra copies for —

16th Army, 22d copy
18th Army, 23d copy

Commander Army Group Area North, 24th copy
11th Army Command, 25th copy

Chief of the German Army Mission to Rumania, 26th copy
OKW/ Armed Forces Operations Staff/Operations, 27th copy
High Command of the Army/ Adjutant to the Chief of the
Army General Staff, 28th copy
Oberquartiermeister IV, 29th copy
Central Section of the General Staff, 30th copy
Organization Section, 31st copy
Training Section, 32d copy
Section “Foreign Armies East”, 33d copy
Chief of Transportation, 34th copy
Generalquartiermeister, 35th copy
Chief, Army Signal Communications, 36th copy

87

General for Special Missions at the Army High Command,
37th copy

Army Organization Section, 38th copy

General of the Army with the Reich Marshal and Commander
in Chief of the Air Force, 39th copy
Operations Section/Chief, 40th copy

I, 41st copy

II, 42d copy

III, 43d copy
la, 44th copy

Extra copies, 45th-55th copies

PARTIAL TRANSLATION OF DOCUMENT NOKW-3482
PROSECUTION REBUTTAL EXHIBIT 46

EXTRACT FROM WAR DIARY OF 3d PANZER ARMY (COMMANDER
DEFENDANT REINHARDT), 18 NOVEMBER 1942, CONCERNING EXE-
CUTION OF THE COMMANDO ORDER

War Diary No. 5 of the 3d Panzer Army for the period
1 October 1942 — 18 January 1943

From 1 October 1942 until 18 January 1943 the 3d Panzer Army
was subordinate to Army Group Center

The war diary was kept from 1 October 1942 until 18 January
1943 by 1st Lt. Bader.

*******

18 November 1942

* * ' * * * * *

1815 hours — Telephone conversation la — la Army Group.
Various difficulties have arisen concerning the execution of the
Fuehrer Order of 21 October, relative to the shooting of terrorists
and groups of bandits. The Panzer army asks the army group
to clarify above all, whether this order merely concerns terror
groups landed by the British or whether it also applies to the
bands in the occupied territory. In this connection, the army
group takes the view that until an intended new OKW decree is
published, all bandits are to be shot to death even if they wear
uniforms. Bandits who voluntarily surrender without being
forced to do so by their situation, will be treated as PW's. An
order should be issued to the troops about this.
*******

88

TRANSLATION OF DOCUMENT NOKW-3358
PROSECUTION REBUTTAL EXHIBIT 40

TELETYPE FROM 3d PANZER ARMY (COMMANDER DEFENDANT REIN-
HARDT) TO SUBORDINATE UNITS, 19 NOVEMBER 1942, CONCERNING
EXECUTION OF COMMANDO ORDER

[Stamp] Top Secret

Teletype to :

IX Army Corps

Transmitted 19/11

1748 hours

XX Army Corps

Transmitted 19/11

1815 hours

XLV1 Panzer Corps

Transmitted 19/11

1715 hours

Commander of Army Rear

Area 590

Transmitted 19/11

1940 hours

Subject: Treatment of bandits

Reference: 3d Panzer Army la No. 4706/42 Top Secret dated
26 October 1942

Until intended new regulation of OKW is published, bandits
who surrender voluntarily without being forced by other circum-
stances, will be treated as prisoners of war. All other bandits,
including the uniformed ones, will be shot.

This order will be destroyed after reading, this order will not
be passed on in writing.

3d Panzer Army, la
No. 4706/42 Top Secret, II

19 November 1942

89

PARTIAL TRANSLATION OF DOCUMENT NOKW-2906
PROSECUTION EXHIBIT 1269

MEMORANDUM, 26 NOVEMBER 1942, SIGNED BY DEFENDANT WARLI-
MONT, CONCERNING THE DESTRUCTION OF THE COMMANDO
ORDER, AND DRAFT INSTRUCTION TO THIS EFFECT,

28 NOVEMBER 1942

Armed Forces Operations Staff/Quartiermeister
( Administration )

26 November 1942
Urgent [Jodi’s handwriting]
Note for an oral report

In consideration of the situation in the East, the Army General
Staff deems necessary the destruction of all copies of the order
concerning the treatment of so-called commando operations dated
18 October insofar as they were issued beyond army level and
beyond staffs of other branches of the armed forces on the same
level.

[Handwritten] Yes.

On other fronts also there is a danger of this order falling into
the hands of the enemy. After a personal report by the Chief
Armed Forces Operational Staff, to the Fuehrer the distribution
at the time was especially ordered in accordance with the note to
distribution list on page 3. A decision is requested.

[Signed] Warlimont

[Handwritten] The order is to be destroyed down to army level inclusive in
the East and in Africa.

[Initial] J. [Jodi]

[Handwritten] In advance by phone on 27 November, 1930 hours, to Col. von
Tippelskirch. [Illegible initial]

[Initial] W [Warlimont] 27/11 2200 hours

90

Priority teletype

28 November 1942

LStamp] DRAFT
[Stamp] Top Secret

16 copies — 1st copy

To:

1. Army General Staff

2. Navy High Command/Naval War Staff

8. Commander in Chief Air Force/Air Force Operational Staff

4. Armed Forces Commander Norway

5. Armed Forces Commander South East

6. 20th Mountain Army

7. Commander in Chief South

8. Panzer Army Africa

Reference: The Fuehrer No. 003830/42 Top Secret, OKW/Armed
Forces Operations Staff dated 18 October 1942

Copies of the above-mentioned order issued in the East beyond
army group level and beyond staffs of other branches of the armed
forces on the same level are to be recalled and destroyed.

All copies with the German troops in Africa and in Finland are
to be destroyed.

OKW/Armed Forces Operations Staff/Quartiermeister
( Administration )

No. 003830/42 top secret II

For information :

Chief Army Armament and Commander of Replacement Army,
2d copy

Armed Forces Commander Netherlands, 3d copy
Armed Forces Commander Ostland, 4th copy
Armed Forces Commander Ukraine, 5th copy
Commander in Chief West, 6th copy
Commander of German Troops in Denmark, 7th copy
German General with the Italian High Command, 8th copy
Reich Leader SS and Chief of the German Police, 9th copy
Simultaneously for Main Office Security Police, 10th copy
OKW/General Armed Forces, 11th copy

Office Foreign Counterintelligence, 12th copy
Armed Forces Legal Department, 13th copy
Armed Forces Propaganda Section, 14th copy
Armed Forces Operations Staff/Ops (Army) (Navy) (Air
Force), War Diary, 15th copy
Organization, 16th copy

Quartiermeister (Simultaneous Teletype), 17th copy
*******

893964—51 7

91

TRANSLATION OF DOCUMENT NOKW-004
PROSECUTION EXHIBIT 149*

LETTER FROM CHIEF OF PRISONER OF WAR AFFAIRS TO ARMED
FORCES OPERATIONS STAFF, 18 MAY 1943, ON REPORTING DEATHS
OF MEMBERS OF ENEMY COMMANDO UNITS; AND ANSWER
THERETO, 25 MAY 1943, BY DEFENDANT WARLIMONT

[Stamp] Top Secret

Chief of Prisoners of War Affairs 18 May 1943

[Initial] W [Warlimont]

File No. 2 f 24.76 General (Via)

No. 90/43 Top Secret 2 copies — 1st copy

To Armed Forces Operations Staff
Quartiermeister (Administration)

[stamp]

OKW/Armed Forces Opera-
tions Staff
Courier Office
20 May 1943

No. 002406/43 Top Secret

Reference: Armed Forces Operations Staff No. 003830/42 Top
Secret dated 18 October 1942

Subject: Reports procedure concerning destruction of sabotage

units

The reference instruction regulates the treatment of enemy
commandos taken prisoner by German troops. Since even a tem-
porary detention of these troops under military guard (PW
camps) has been forbidden, they are not to be considered as PW’s.

A decision is requested as to whether members of these enemy
commandos are to be considered as members of the enemy armed
forces killed in action — such as, for example, enemy airmen who
have been shot down — and a corresponding report made to the
enemy nation, according to international agreements, or whether
no report at all is to be made in these cases.

[Handwritten and crossed out]

[In my opinion the first-named procedure should be decided
upon.]

[Initial] K [Kipp]
[Signed] Graevenitz

* Photographic reproductions of this document appear on pages 323 and 324.

92

[Stamp] Draft

Fuehrer Headquarters, 25 May 1943

Armed Forces Operations
Staff /Quartiermeister (IV)

No. 002406/43 Top Secret

[Stamp] Top Secret

2 copies — 2d copy

To : Chief of Prisoners of War Affairs

Reference: Communication from the Chief of Prisoner of War
Affairs File No. 2 f 24. 76 General (Via) No. 90/43
Top Secret dated 18/5/43

Subject: Reports procedure concerning destruction of sabotage

units

The order dated 18 September 1942 is based on the fact that
we do not regard members of enemy sabotage units as soldiers,
since they are really common criminals, and must be dealt with
accordingly.

The Armed Forces Operations Staff considers it out of the ques-
tion hereafter for saboteurs, treated in accordance with the
Fuehrer’s decree, to be recognized as soldiers which would be the
case if their deaths were reported to the enemy nation in accord-
ance with the regulations valid for enemy soldiers fallen in battle.
Thus, the Armed Forces Operations Staff is of the opinion that
no reports of deaths should be made at all.

A Fuehrer decree is in question here, therefore a decision in this
matter does not rest with the Armed Forces Operations Staff. The
Chief of PW Affairs must provide for the necessary decision
directly through the Chief of the General Armed Forces Office and
the Chief OKW.

By order :

[Initial] W [Warlimont] 27 May

93

TRANSLATION OF DOCUMENT 510-PS
PROSECUTION EXHIBIT 154

TELETYPE FROM DEFENDANT WARLIMONT TO COMMANDER IN
CHIEF SOUTHEAST, 26 FEBRUARY 1944, CONCERNING LANDING OF
BRITISH COMMANDOS IN DODECANESE ISLANDS

E'

Armed Forces Operations Staff/Quartiermeister 2
( South/Southeast)

SSD— Teletype

E

26 February 1944 y

1 Eec

1 copy

[Stamp] Top Secret

Ik

To Commander in Chief Southeast, la

Reference: Decree of the Fuehrer No. 003830/42 Top Secret
OKW/Armed Forces Operations Staff, dated 18 Oc-
tober 1942

Subject: Landings of British commandos between 19 and/or

23 February on the Dodecanese Islands of Patmo Sj
and Piscopi

On the occasion of the reported landings by English commandos
on Patmo on 19 February and on Piscopi on 23 February, refer-
ence is made once again to reference order.

[Initial] W [Warlimont]

j,

OKW/Armed Forces Operations Staff/Quartiermeister 2
(South/Southeast)

Nr 002085/44 Top Secret

$

94

PARTIAL TRANSLATION OF DOCUMENT NOKW-227
PROSECUTION EXHIBIT 155

TELETYPE FROM DEFENDANT WARLIMONT TO COMMANDER IN
CHIEF SOUTHEAST, 4 JUNE 1944, CONCERNING TWO PRISONERS
CAPTURED ON THE ISLAND OF ALIMNIA, AND CORRESPONDING
TELETYPE FROM COMMANDER IN CHIEF SOUTHEAST, 5 JUNE 1944,
TO COUNTERINTELLIGENCE OFFICER, ARMY GROUP E

[Stamp]

Teletype Station
HURX/FK
Ref. 2093 D. No.

Received : 1800, 4 June
by haj through
6 HZPH
Transmitted :

Hrs on to through
Remarks : to :

[Stamp] Top Secret
Urgent GWASL 08365 4 June 1235 [hours]

To : CinC Southeast Ic Top Secret
Subject: British commandos at Alimnia

Reference: Your teletype No. 3687/44 Top Secret
3d copy dated 22 May 44 :

Since details transmitted are sufficient for representations to
the Turkish Government, according to information received from
the Foreign Office, the British radio operator Carpenter and Greek
sailor Lisgaris captured at Alimnia are no longer needed and may
be released for special treatment according to the Fuehrer Order.

[signed] By Order Warlimont OKW/Armed Forces Operations
Staff Ic/II No. 005822/44 Top Secret.

Commander in Chief Southeast

Army Group Command F (/)

Ic/Counterintelligence Officer

No. 3687 Top Secret 4 June 1944 Enc

Ic 03 05 07 D Ic/L zbV

Counterintelligence AI All

AIII, State Police, Secret Field Police

[Stamp] Top Secret
[Handwritten] 008887/2240 —

Teletype

[Handwritten] 1625 HURX/FUE 6 a 19/2
2 copies — 1st copy

To Army Group E Ic/Counterintelligence Officer

Subject: British Radio Operator Carpenter, Greek Sailor Lisgaris

By order OKW/Armed Forces Operations Staff, the British
radio operator Carpenter, and Greek sailor Lisgaris, captured at

95

Alimnia are no longer needed and will be released for special treat-
ment according to Fuehrer order.

CinC Southeast (Army Group Command F)

Ic/Counterintelligence Officer

No. 3687/44 Top Secret dated 5 June 1944

[Handwritten] “Alimnia” files

Certified :

[Signed] von Harling

Lt. Col., GSC

TRANSLATION OF DOCUMENT NOKW-OI3
PROSECUTION EXHIBIT 156

TELETYPE REPORT FROM COMMANDER IN CHIEF SOUTHEAST TO
DEFENDANT WARLIMONT, 14 JUNE 1944, CONCERNING APPLICA-
TION OF COMMANDO ORDER BY BULGARIAN ARMED FORCES

Teletype Office

[Initial] J taken care of

16 June

2140

2522

GWASL 09130
Current Number

Transmitted: OKW/WFST

[Initial] W [Warlimont]

Teletype
Call letters
Received :

Receipted for :

Date: 15 June 1944
Time: 1145
From: HZPH
Through: Haarmann

Date:

Teletype No. 13385 [initials]
At: 12 June

[Stamp]

To: 19 June 1944 c 15 June
By: c

R An
1200 2518

[Stamp] Top Secret

Remarks

HURX/FUE 009636 15 June 0900

To OKW/Armed Forces Operations Staff
Attention Lt. Gen. Warlimont

Date of Transmission : Hour of dispatch :

Top Secret To

96

Reference: Telephone request from the Deputy Chief of Staff of
the Armed Forces Operations Staff to Chief of Staff,
Commander in Chief Southeast

The Chief of Army Mission to Bulgaria reports on 14 June that
after conversation between chief of Mission and deputy chief of
staff of Bulgarian War Department, Bulgarian army will deal
with enemy agents, saboteurs, etc., according to Fuehrer Order
of 18 October 1942.

Commander in chief Southeast
(Commanding General, Army Group F)

Ic/Intelligence Officer

No. 4952/44 Top Secret, dated 14 June 1944.

PARTIAL TRANSLATION OF DOCUMENT NOKW-3240
PROSECUTION EXHIBIT 1635

TELEGRAM FROM NEUBACHER, GERMAN SPECIAL PLENIPOTENTIARY
SOUTHEAST, TO THE REICH FOREIGN MINISTER, 6 JUNE 1944, CON-
CERNING APPLICATION OF COMMANDO ORDER TO WAR CORRE-
SPONDENTS AS ORDERED BY DEFENDANT WARLIMONT, AND FOR-
EIGN OFFICE MEMORANDUM THERETO, I JUNE 1944

[Stamp] Top Secret

[Handwritten] Received 9 June

[Handwritten] OKW [Initial] E

Telegram

[Handwritten] 9 June evening
From Belgrade, No. 1268, dated 6 June 1944

Special Plenipotentiary Southeast

For the personal attention of the Reich Foreign Minister

Armed Forces Operations Staff, General Warlimont, ordered
the Chief of Staff of Army Group F by telephone to hand over
the captured war correspondents Talbot, Slape, and Fowler to
the Security Service, after interrogation by military authori-
ties and the Foreign Office, in accordance with the Fuehrer Order
of 18 October 1942 concerning the treatment of prisoners from
British commando operations.

97

I request that the Foreign Office keep these newspaper men
available and point out that above order evidently cannot be ap-
plied to war correspondents unless there is a special decision
from the Fuehrer for this special case. May I further point out
that it has become known to the world that we have captured
the three correspondents alive. The disappearance of these
three men would also become known and would unleash against
us an enormous propaganda wave to the effect that these men
were non-combatants who were captured at the headquarters
of a unit whose militant forces are treated by us as prisoners
of war. It cannot be assumed that these war correspondents were
military advisers for band warfare.

I fear the severest reprisals against German prisoners held
by Tito if special treatment is given to the three war corre-
spondents in accordance with the Fuehrer Order of 18 October
1942; we could certainly avenge these reprisals but could not
render them undone. Always assuming that there is no special
Fuehrer order explicitly for this Talbot case, I hold strong
misgivings from a point of view of foreign policy, about pro-
voking the solidarity of international journalism, also in neutral
countries, by executing the three men whose activity here was
apparently given consideration in the Fuehrer order concerning
the treatment of prisoners from British commando operations.

[Signed] Neubacher

[Handwritten]

Received by Megerle upon his telephone call.

Megerle: Report has been submitted to F.

Ri: Then unless I get special instructions from the Reich Foreign Minister
I shall do nothing at the OKW.

[Initial] N

9 June

[Stamp] 361562

* * * * * * *

98

Dr. Megerle

BFI Staff Reich Foreign Office

Very Urgent

Fuschl, 1 June 1944
[Initial] N 2 June

Note for Ambassador Ritter*

[Initial] E 1 June 1050
1 Enclosure

Globe-Reuter reports the following from London on 31 May:
“Reuter’s special correspondent, John Talbot, who was as-
signed to Tito’s headquarters, has been captured in Yugoslavia,
together with two press photographers. Stoyan Pribichevich,
a fourth member of the group from the press was also cap-
tured, but is said to have escaped. He is a correspondent of
the American magazines ‘Time’ and ‘Life’ and also represents
the British and American press.”

The Reich Foreign Minister has ordered that these captured
enemy journalists be brought to Germany as quickly as possible
to be interrogated by the Foreign Office. Our Foreign Office repre-
sentative attached to the Commander in Chief Southeast, Lieu-
tenant Ritter, confirms that enemy war correspondents have been
captured. However, they had not yet arrived at the competent
army staff. In order to make possible their speedy transport to
Germany, and to prevent interference by previous interrogations,
it is necessary to obtain an appropriate order from the Armed
Forces Operations Staff to the Commander in Chief Southeast.
The Reich Foreign Minister requests you to see that this order
is obtained as quickly as possible.

In accordance with our telephone conversation, I enclose the
draft of a letter to the Armed Forces Operations Staff ; however,
I recommend, if it is at all possible, to carry this out by telephone
in order to prevent the Propaganda Ministry cutting in via
Armed Forces Propaganda and attempting to take these prisoners
away from us.

[Signed] Megerle
[Stamp] 361566

* Defendant in the case of United States vs. Ernst von Weizsaecker, et al.. Case No. 11,
vols. XII, XIII, and XIV.

99

TRANSLATION OF DOCUMENT 506-PS
PROSECUTION EXHIBIT 158

DRAFT OF A REPLY FROM DEFENDANT WARLIMONT TO ARMED
FORCES LEGAL DEPARTMENT, 22 JUNE 1944, CONCERNING APPLI-
CATION OF COMMANDO ORDER

Draft

Fuehrer Headquarters, 22 June 1944

Armed Forces Operations Staff/Quartiermeister (Adm. 1)

No. 006580/44 Top Secret

[Stamp] Top Secret

2 copies — 2d copy

Reference: Armed Forces Legal Department 2 f 10.34 (III/10)
No 158/44 Top Secret, 119/44, dated 17 June 1944

Subject: Enemy agents

Fuehrer Order 003830/42 Top Secret, OKW/Armed
Forces Operations Staff, dated 18 October 1942

To Armed Forces Legal Department

[Handwritten] Dispatched 24/6

[Initials] Sch

The Armed Forces Operations Staff agrees with the view taken
in the letter of the Army Group Judge Advocate [Heeresgruppen-
richter] attached to the Commander in Chief Southwest, dated
20 May 1944 (Ref. No. 68/44 Top Secret). The Fuehrer Order
is to be applied even if the enemy employs only one person for
a task. Therefore, it does not make any difference if several
persons or only one person takes part in a commando operation.
The reason for the special treatment of participants in a com-
mando operation is that such operations do not correspond to
the German concept of usage and customs of warfare.

By order :

[Initial] W [Warlimont]

3 Enclosures
[Handwritten]

Quartiermeister 2 with request to note.

All questions connected with the Commando Order (18 October 1942) are
to be handled according to previous directive of Chief Quartiermeister at
Quartiermeister 2 (W), file 2140, not at Administration.

[Initial] I [Ihnen]

100

TRANSLATION OF DOCUMENT 531-PS
PROSECUTION EXHIBIT 159

MEMORANDUM ON TREATMENT OF MEMBERS OF COMMANDO
UNITS IN NORMANDY, 23 JUNE 1944, SIGNED BY DEFENDANT

WARLIMONT

Armed Forces Operations Staff /Quartiermeister (Adm. 1)

Fuehrer Headquarters, 23 June 1944

No. 006688/44 Top Secret

TOP SECRET

3 copies — 1st copy

Reference: Fuehrer Order No. 003830/42, OKW/Armed Forces
Operations Staff, dated 18 October 1942

Subject: Treatment of members of commando units

Note for an oral report

Commander in Chief West reports in teletype message No.

1750/44 Top Secret, dated 23 June 44:

“The treatment of enemy commando units has so far been
carried out according to reference order. With the large-scale
landing a new situation has arisen. The reference order directs
in paragraph 5 that enemy soldiers taken prisoner in open
combat or who surrender within the framework of normal
combat operations (large-scale landing and land operations)
are not to be treated according to paragraphs 3 and 4. It must
be established in a form easily understood by the troops how
far the concept ‘within the framework of normal combat opera-
tions, etc.’ is to be extended. The view of Commander in Chief
West is as follows:

“a. The commitment of airborne troops and commandos in
Normandy clearly falls under paragraph 5.

“b. It is likewise not to be contested that paratroop units
or groups landed further to the rear are connected with the
large-scale landing operation, if their mission is to interrupt
supply lines or to carry out deceptive maneuvers, etc. The Ger-
man combat soldier will not always be able, during battle, to
decide whether he is dealing with sabotage units parachuted
down or larger airborne operations coordinated more or less
closely with a landing from the sea already concluded or still
in progress.

“c. As a result of the frequent troop transfers in the area

101

of the Commander in Chief West, especially recently, it is
possible that a considerable number of soldiers are ignorant
of the reference order, which dates back more than IV 2 years
ago. It will hardly be possible to explain to ethnic Germans
and foreigners the differentiation in the treatment of prisoners
owing to language difficulties. The Commander in Chief West
thinks it wrong to issue further reproduction of the order in
the present situation, where cases of losses must be consid-
ered. Considerable repercussions for our own prisoners must
be expected if its contents become known.

“<Z. The application of paragraph 5 for all enemy soldiers in
uniform penetrating from the outside into the Occupied West-
ern Territory is held by Commander in Chief West to be the
most correct and clearest solution. On the other hand, an order
from the Reich Security Main Office to the Commander of the
Security Police and the Security Service in Paris has decided
that paragraphs 3 and 4 of the reference order are to be
applied in the future, as before, in the case of uniformed
parachutists committed in groups. A conversation with repre-
sentatives of the Higher SS and Police Leader in France, and
of the Commander of the Security Police and Security Service
in Paris gave the result that according to the opinion of all
concerned the difficulty lies in the determination of the ‘frame-
work of normal combat operations'. As a solution it was agreed
to set a line (e.g., Seine from the estuary to Rouen-Argentan-
Avranches) north of which paragraph 5 and inland of which
paragraphs 3 and 4 apply. This solution also must be called
incomplete, since the combat situation can at any time neces-
sitate the extension of this line to other coastal areas as well.
In case of a large-scale airborne landing in the interior, such
boundaries cannot be drawn at all. Commander in Chief West
requests, therefore, that in agreement with the Reich Leader
SS the decision be made that, in view of the new situation,
paragraph 5 is to be applied throughout the Occupied Western
Territory."

Position taken by Armed Forces Operations Staff

1. The Commando Order remains basically in effect even after
the enemy landing in the West.

2. Paragraph 5 of the order is to be applied to the extent that
the order is not valid for those enemy soldiers in uniform, who
surrender to or who are captured in open combat in the immediate
combat zone of the landing area by our troops committed there.
By troops committed in the immediate combat zone is meant, the

102

divisions fighting in the front line as well as the reserves up
to and including corps headquarters.

3. Furthermore, in doubtful cases enemy personnel captured
alive are to be turned over to the Security Service upon whom
it is incumbent to determine whether the Commando Order is
to be applied or not.

4. The Commander in Chief West is to see that all troop units
committed in his area are orally informed in a suitable manner
about the order concerning the treatment of members of com-
mando operations, dated 18 October 1942, together with the
above explanation.

Proposal: Attached teletype message. 1

[Signed] Warlimont

Distribution :

Chief of the High Command of the Armed Forces through
Deputy 2 Chief of the Armed Forces Operations Staff — 1st
copy

War Diary — 2d copy
Quartiermeister — Draft — 3d copy

TRANSLATION OF DOCUMENT 530-PS
PROSECUTION EXHIBIT 160

DRAFT OF AN ORDER, 3 24 JUNE 1944, SIGNED BY DEFENDANT
WARLIMONT, CONCERNING TREATMENT OF MEMBERS OF COM-
MANDO UNITS IN NORMANDY

Armed Forces Operations Staff/Quartiermeister (Administra-
tion 1)

Fuehrer Headquarters, 24 June 1944
5 copies — 1st copy

[Stamp] Top Secret

SSD — Teletype

To: (1) Commander in Chief West

For information:

(2) Chief of Army General Staff

(3) High Command of the Air Force/ Air Force Operations
Staff

1 Document 530-PS, Pros. Ex. 160 immediately following.

2 “Deputy” crossed out; cf., Warlimont’s testimony below in this section.

3 Text of this order is crossed out in original document, by a diagonal hand-drawn line;
cf., Warlimont’s testimony below in this section.

103

(4) High Command of the Navy/lst Naval War Staff

(5) Reich Leader SS, Command Staff

(6) Military Commander, France

(7) OKW/Armed Forces Legal Department

Reference: 1. Fuehrer Order No. 003830/42, Top Secret, dated
18 October 1942, OKW/Armed Forces Opera-
tions Staff

2. Teletype, Commander in Chief West No. 1750/44
Top Secret, dated 23 June 1944

Subject: Treatment of members of commando units

1. Order referred to in 1 [of reference above] remains fully in
force.

2. Paragraph 5 [of Commando Order] refers to enemy soldiers
in uniform, who surrender or are captured in the immediate
combat area of the bridgehead in open combat by our own troops
committed there. Troops committed in the immediate combat
area means the divisions fighting in the front line as well as
the reserves up to and including corps headquarters.

3. Furthermore in doubtful cases, enemy personnel captured
alive are to be turned over to the Security Service, upon whom
it is incumbent to determine whether the Commando Order is
to be applied or not.

4. Commander in Chief West is to see that all troop units
committed in his area are orally informed in a suitable manner
about the order concerning the treatment of members of com-
mando operations dated 18 October 1942, together with the above
explanation.

[Initial] W [Warlimont]

OKW/Armed Forces Operations Staff /Quartiermeister (Admin.
1) No. 006688/44 Top Secret

After dispatch:

Operations Department (Army) 2d copy
Operations Department (Air Force/Navy) 3d copy
Liaison Officer Foreign Countries 4th copy
War Diary 5th copy

[Initial] P [Poleck]

27/6

104

TRANSLATION OF DOCUMENT NOKW-005
PROSECUTION EXHIBIT 161

INTER-OFFICE MEMORANDUM FROM ARMED FORCES OPERATIONS
STAFF TO QUARTIERMEISTER SECTION, 25 JUNE 1944, SIGNED BY
WARLIMONT, CONCERNING THE DRAFTING OF AN INSTRUCTION
ON THE TREATMENT OF MEMBERS OF COMMANDO UNITS IN

NORMANDY

Fuehrer Headquarters, 25 June 1944
Deputy Chief Armed Forces Operations Staff

[Handwritten] Administration 1
[Initial] I 25 June

To Quartiermeister [Section]

Subject: Treatment of members of commando units

Chief, Armed Forces Operations Staff desires that the follow-
ing order be given without any formalities, clearly, and simply:

1. All sabotage units, etc., encountered outside the actual com-
bat area in Normandy will be killed in battle ; in special cases they
will be handed over to the Security Service.

2. Concise instructions will be given accordingly to all troops
committed outside the combat area in Normandy.

3. Starting immediately, Commander in Chief West will report
daily on the number of saboteurs liquidated in this manner.
This number will be published daily in the armed forces com-
munique in order to create a deterrent effect as was already
achieved in the same manner regarding previous commando
operations. This applies in particular to the operations of the
military commander.

Submit order today.

Signed: Warlimont
Certified :

[Illegible signature]

Captain

105

PARTIAL TRANSLATION OF DOCUMENT 551-PS
PROSECUTION EXHIBIT 162

OKW DIRECTIVE ON APPLICATION OF COMMANDO ORDER IN AREA
OF COMMANDER IN CHIEF WEST, 25 JUNE 1944, INITIALED BY
DEFENDANT WARLIMONT

Armed Forces Operations Staff /Quartiermeister (Adm. 1)

[Handwritten] Chief OKW.
[Initial] K [Keitel]
[Stamp] Top Secret

25 June 1944
5 copies — 1st copy
[Handwritten] Checked before release

Chief, Armed Forces Operations Staff

KR — Teletype
To:

1. Commander in Chief West

2. Chief of Army General Staff [OKH]

3. High Command of the Air Force/Air Force Operations Staff

4. High Command of the Navy/lst Naval War Staff

5. Reich Leader SS — Command Staff

6. Military Commander France

7. Military Commander Belgium/Northern France

8. Armed Forces Commander Netherlands

9. OKW/Armed Forces Legal Department

10. [Handwritten] Commander in Chief Southwest

Reference: 1. Fuehrer Order No. 003830/42 Top Secret, dated 18
October 1942, OKW/Armed Forces Operations
Staff

2. Teletype Commander in Chief West No. 1750/44
Top Secret, dated 23 June 1944 (only to OKW/
Armed Forces Operations Staff)

Subject: Treatment of members of commando units

1. Even after the landing of the Anglo-Americans in France,
the Fuehrer order on the destruction of terror and sabotage units
dated 18 October 1942, remains fully in force. Exceptions are
enemy soldiers in uniform in the immediate combat area of the
bridgehead, that is, in the area of the divisions fighting in the

106

S | front line as well as of the reserves up to the corps headquarters,
according to paragraph 5 of the basic order dated 18 October
1942.

2. All members of terror and sabotage units found outside the
immediate combat area, this includes in principle all para-
troopers, are to be killed in battle. In special cases, they are
to be handed over to the Security Service.

3. All troops committed outside the combat area in Normandy
are to be informed concisely about the duty to destroy enemy
terror and sabotage units according to the directives issued
therefor.

4. Starting immediately, Commander in Chief West will report
daily how many saboteurs have been liquidated in this manner.
This applies in particular to the operations of the military com-
manders. The number shall be published daily in the armed forces
communique in order to create a deterrent effect, as was already
achieved in the same manner regarding previous commando
operations.

[Initial] W [Warlimont]

[Signed] Keitel

OKW/Armed Forces Operations Staff Quartiermeister (Adm. 1)
No. 006688/44 Top Secret

[Handwritten] Addition for Commander in Chief Southwest .
Similar action is to be taken in the Italian Theater of War.

[Initial] J [Jodi]

After dispatch:

Qu (Adm. 1) Simultaneously teletype, 1st copy
Op. (Army), 2d copy
Op (Navy/ Air Force) War Diary, 3d copy
Liaison Officer Foreign Countries, 4th copy
Liaison Officer Armed Forces Propaganda, 5th copy
Copy sent on 18 August to the Chief of the Security Police and
the Security Service.

*******
893964—51 8

107

TRANSLATION OF DOCUMENT NOKW-213
PROSECUTION EXHIBIT 163*

LETTER FROM ARMY GROUP G TO SUBORDINATE UNITS, 29 JUNE
1944, TRANSMITTING OKW ORDER CONCERNING CONTINUED
APPLICATION OF COMMANDO ORDER

[Stamp] Top Secret

8 copies — 7th copy

On the premises

Ic

Liaison Officer Military Commander
Headquarters
War Diary
la (E)

29 June 1944

To : 1st Army
19th Army

Corps Headquarters, LVII1 Panzer Corps
189th Reserve Division (by courier)

Main Liaison Staff 564 (by courier)

KR

Subject: Treatment of members of commando units
OKW has ordered:

1. The Fuehrer’s order concerning the destruction of terror and
sabotage units, dated 18 October 1942, remains fully in force
even after the landing of the Anglo-Americans in France.

Exempted are, as before, enemy soldiers in uniform in the
immediate combat area of the bridgehead, that is in the area of
the divisions fighting in the front line and of the reserves up
to, and including the corps headquarters, as provided by para-
graph 5 of the basic order dated 18 October 1942.

2. All members of terror and sabotage units, to which in prin-
ciple all paratroopers belong, are to be exterminated in combat
whenever they are found outside the immediate combat area.
In special cases they are to be handed over to the Security Service.

3. All German army units committed outside the Normandy
combat area are to be instructed concisely as to the regulations
regarding the duty to exterminate enemy terror and sabotage
units.

* Photographic reproduction of this document appears on page 326.

108

4. Effective immediately, Commander in Chief West will report
daily how many saboteurs have thus been liquidated. This applies
particularly also to the operations of the military commanders.
The figure will be published daily in the armed forces communique
in order to create a deterrent effect as was already achieved in
the same manner regarding previous commando operations.

Signed : Keitel [crossed out]

Postscript — For Army Group Command G

The reports are to be entered into the daily report.

Army Group Command G
la No. 841/44 Top Secret
dated 29 June 1944

[Initial] M 29 June

TRANSLATION OF DOCUMENT NOKW-OIO
PROSECUTION EXHIBIT 164

NOTE ON TELEPHONE CALL BY COMMANDER IN CHIEF WEST,
29 JUNE 1944, INITIALED BY WARLIMONT, CONCERNING
COMMANDO ORDER

29 June 1944

Qu. 1 (Administration)

[Stamp] Top Secret

[Initial] W [Warlimont] 29 June
Subject: Treatment of members of commando units

Note

Telephone call by Commander in Chief West, Ic (Lt. Col. Meyer-
Detering), dated 29 June 1944, 1800 hours.

Report to paragraph 4 of the order of the Armed Forces Opera-
tions Staff of 26 June/44. No. 006688/44 top secret, concerning
the liquidation of saboteurs can only arrive in the next few days.
The troop units must first be notified of the order, particularly,
the many new units that do not yet have any knowledge at all
of the Fuehrer Order of 18 October 1942.

Commander in Chief West announced his divergent point of
view prior to the issuing of the Armed Forces Operations Staff

109

order and accordingly did not voice any further objections now.
[Handwritten] matter closed!

[Initial] I 29 June

[Signed] Poleck 1

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
HANS SCHOENIG 2

DIRECT EXAMINATION

Mr. McHaney: Witness, your name is Hans Erich Schoenig?
Witness Hans Schoenig: Yes.

Q. And your surname is spelled S-c-h-o-e-n-i-g?

A. That is correct.

Q. You are a German?

A. Yes.

Q. Were you a former member of the German Army?

A. I was a member of the German Army from 1918 to 1919.

Q. Well, did you participate as a member of the German Army
in World War II?

A. Yes, I did.

Q. What rank did you attain?

A. I was captain of the reserve.

Q. Were you at one time the intelligence officer, or Ic, of the
LXXX Corps?

A. I was Ic of the LXXX Corps since 1943.

Q. You held that position from 1943 until the end of the war?
A. Until January 1945. Then I had to leave because of illness.
Q. Where was the headquarters of the LXXX Corps located
in June and July of 1944?

A. It was near Poitiers in southwestern France.

Q. And who was the commanding general of the LXXX Corps?
A. General of the Artillery Gallenkamp.

Q. Who was the chief of staff of the LXXX Corps?

A. That was Colonel of the General Staff Koestlin.

Q. And you were directly subordinated to Colonel Koestlin, is
that right?

A. Yes, that is correct.

Q. Of what army was the LXXX Corps a part?

A. Part of the First Army.

Q. Was the headquarters of the Commander in Chief West the
highest headquarters in France?

1 Chief of Quartiermeister Department, Armed Forces Operations Staff, High Command,
German Armed Forces.

3 Complete testimony is recorded in mimeographed transcript, 17 February 1948, pp. 748-76J.

no

A. Yes.

Q. And who was the Commander in Chief West?

A. That was Field Marshal von Rundstedt.

Q. Witness, did you become familiar with the so-called Com-
mando Order during the course of the war?

A. The Commando Order, that is, the so-called first version
of the Commando Order became known to me in spring 1944.

Q. Did you also know the Commando Order by the name,
“Fuehrer Order of 18 October 1942”?

A. I heard of that later.

Q. Now, Witness, did the LXXX Corps ever capture any Allied
commandos ?

A. Commandos? Never. No, never, up until the beginning of
July.

Q. Well, Witness, will you please speak a little bit louder so
that the defense counsel can hear you distinctly?

A. Yes.

Q. Did you ever capture any Allied paratroopers?

A. Yes.

Q. When?

A. At the beginning of June one or two British paratroopers
were handed over to us, they were briefly interrogated by my
interpreter, and we then sent them immediately to the air force
agencies in Tours. I myself never saw these two men.

Q. Well now Witness, what had these paratroopers done, how
did it come about that they were taken by the LXXX Corps?

A. During the first days of July 1944, an explosion had taken
place during the early morning hours in the vicinity of the corps
command post. Immediately after the explosion, the guard from
the signal detachment arrested two men in overalls who spoke
English. They were immediately brought before my interpreter,
and he interrogated them. This interrogation revealed that the
men involved were two British soldiers, but nothing else of very
much use for Ic purposes. All they said was that they were
supposed to dynamite the railroad track 800 to 1,000 meters
distant from the command post, and that they had succeeded in
fulfilling this mission. On account of their pay books they proved
to be British soldiers. That was all we could find out about them.

Q. Now, exactly how were these two British soldiers dressed,
did they wear a uniform?

A. They wore overalls with no badges of rank or other mili-
tary insignia. If I had met these people in the street I would
not have recognized them as soldiers, particularly since they
wore no headgear.

Ill

Q. Now, what happened to these two British paratroopers
after they were captured and interrogated by your office?

A. They were taken to the armed forces prison in Poitiers.

Q. Did any further interrogations take place?

A. Yes. The Security Service Command Detachment Poitiers
asked to be permitted to interrogate these two British soldiers
because a sabotage act was involved. The Security Service in
Poitiers was the agency which dealt with sabotage acts.

Q. And what transpired?

A. Nothing.

Q. Did the Security Service get any additional information
from these two British paratroopers?

A. Only later.

Q. And what information did they get?

A. The Security Service informed me that these two prisoners
were members of a larger group which was supposed to com-
prise about 30 people, and this group was encamped in a wood
near Poitiers.

Q. Now, Witness, will you tell us again, as exactly as you can
recall, just exactly when these first two British paratroopers were
captured?

A. I can no longer tell you the date, but that could be ascer-
tained from my interrogation in connection with the trial in
Wuppertal.* It was towards the end of June, approximately.

Q. The end of June 1944?

A. Yes sir.

Q. Now, did your interrogating officer ask these British para-
troopers whether they were with a larger group?

A. Yes.

Q. And what did they tell you, did they refuse to give informa-
tion on that?

A. They gave no information to my interpreter. They merely
referred to their pay books and said that they didn’t have to
give further information according to the Geneva Convention.

Q. And then you turned them over to the Security Service, is
that right?

A. Not “turned over”. The Security Service asked to be allowed
to interrogate them.

Q. And a few days later the Security Service reported back
to you the information that these two British paratroopers had

♦General Blumentritt, C/S West (Army Group D), General Gallenkamp, CG of LXXX
Corps, Colonel Koestlin, C/S of LXXX Corps, and Captain Schoenig, G-2 of LXXX Corps,
were tried by a British Military Court at Wuppertal, 25 March — 1 April 1947. Blumentritt was
found not guilty, Gallenkamp was sentenced to death (later commuted to life imprisonment),
Koestlin to life imprisonment, and Schoenig to 5 years’ imprisonment.

112

stated that they were with a larger group of some 30 para-
troopers, is that right?

A. Yes. Later on it was revealed that this group of men was
even larger. Further, they stated at the time that they were in
contact with the Maquis in this camp in the woods.

Q. Witness, I will again have to ask you to speak a little
louder. I will ask how you explain the fact that these two soldiers
failed to give information to you, yet a few days later gave
that information to the Security Service?

A. I was annoyed about it myself. How the Security Service
managed to get the information, I don’t know. I asked the Se-
curity Service and I did not receive an answer.

Q. Now, was the capture of these two British paratroopers
reported to the Commanding General Gallenkamp, and to your
chief of staff?

A. Of course, immediately after the interrogation I reported
the arrest of these two men to my Chief of Staff, Colonel Koestlin,
and to General Gallenkamp.

Q. Was this also reported to the First Army?

A. The First Army was also informed about this in the evening
report. We had to make two daily reports, one in the evening
and one in the morning. The First Army was informed in the
evening report that we had taken two prisoners who had been
carrying out sabotage.

Q. Now, after the information was obtained from these two
British paratroopers that they were with a larger group, what
happened then?

A. A sabotage troop was involved here, and therefore the
whole matter had to be followed up by the Security Service. The
commander of the Security Service in Poitiers decided to capture
this group of paratroopers who were in the woods near Poitiers.
Since his own forces were not strong enough, he asked the chief
of staff for military support in capturing these paratroopers and
the Maquis.

Q. Well, how was the raid carried out?

A. The Security Service was given a squadron of cyclists for
this purpose. This bicycle squadron was subordinated to the
corps headquarters for a temporary period and was intended
as protection for the headquarters against possible surprise at-
tacks by the Maquis.

Q. This was a bicycle squadron of the 258th Reserve Division,
is that right?

A. Yes, that is correct.

Q. Now, when was this raid carried out?

113

A. The operation was carried out in the early morning hours of
a Monday. It must have been 3d of July.

Q. And what was the result?

A. The raid was successful. The members of the camp were
taken by surprise and after a short burst of firing 34 Englishmen
surrendered.

Q. You say you took 34 prisoners?

A. Yes, 34 prisoners, that is quite correct.

Q. Did you take any booty?

A. Some booty was taken also. There were three jeeps which
had also been dropped by parachute, one radio transmitter with
which the Englishmen kept in contact with their home country,
some weapons, and some trucks.

Q. Was anybody wounded in this action?

A. Three wounded British prisoners were brought in and soon
after the raid they were taken to the Hotel Dieu in Poitiers by
the Security Service.

Q. What were the nationalities of these prisoners?

A. They were three Englishmen.

Q. No, I mean the total number of prisoners taken. You men-
tioned the figure “34”; what was their nationality?

A. They were all British, with one exception, one American was
among them.

Q. One American — were these prisoners wearing uniforms?

A. Yes, these people wore uniforms.

Q. What color were the uniforms?

A. Khaki uniforms.

Q. What did your interpreter report to you concerning the
status of these men as soldiers?

A. What do you mean by “status”, do you mean whether they
were married or single, or what kind of status?

Q. Whether they were soldiers or not?

A. Yes, of course, undoubtedly they were soldiers. There was
no doubt about that.

Q. Did you report this capture to your commanding officer and
Chief of Staff?

A. Immediately after I had received the report that the raid
had been successful, I informed the Chief of Staff and the com-
manding general of the facts. In addition, an officer of the corps
headquarters who had participated gave more detailed facts. I
myself did not participate. Furthermore I reported the raid as
a special event immediately by telephone to the Ic of the First
Army.

114

Q. Well, what happened after that, did you have any contact
with the First Army concerning what should be done with these
prisoners?

A. No. We did not discuss what was to happen to them, be-
cause in the meantime, in agreement with the Chief of Staff, I had
tried to turn over these prisoners to the air force. I had contacted
Tours airfield and had asked them to take these prisoners off our
hands. Once before we had turned over two prisoners to this
airfield. In this particular instance, however, Tours airfield did
not agree to this request because the airfield had just been com-
pletely destroyed by an air attack. Furthermore, I asked the
Cognac airfield which was nearby, to take over these prisoners,
and they did not want them either. The Marignac airfield also
turned down my request. When I reported to Major Hay of the
First Army, I asked him to let me turn the prisoners over to him
since the army should be interested in interrogating these people.
Major Hay refused to take over these prisoners because they had
neither suitable accommodations nor guards for them.

Q. What was your purpose in reporting this matter to your
chief of staff?

A. I wanted to get rid of the prisoners, and I discussed this
with Major Hay when I talked to him on the telephone. During
this conversation Major Hay said to me, “Do you know, Schoenig,
this whole paratrooper affair is too hot to handle?”

Q. Witness, did you receive a message from the Commander
in Chief West concerning these prisoners?

A. Later, only the next day. On the following day a teletype
arrived from the Ic of the Commander in Chief West. The
text was approximately as follows. I don’t want to commit
myself as to the actual wording, but approximately it was this:
“Immediate telegraphic reply to Ic Commander in Chief West
concerning whereabouts of prisoners. Report destruction of tele-
type involved.” It was signed by the Commander in Chief West.
This teletype was given first of all to the Chief of Staff. The Chief
of Staff handed it on to me with the request to submit it immedi-
ately to the commanding general.

Q. Did you submit this message to your Chief of Staff?

A. I received the information from the Chief of Staff and I
submitted it to the commanding general.

Q. What transpired then?

A. The commanding general was furious and said approxi-
mately the following, “Do you know that this teletype has put
me in an awkward situation and that the whole thing is most
inconvenient? Have the Chief of Staff draw up an answer to this
teletype immediately.”

11.5

Q. Well, did the Chief of Staff do that?

A. The Chief of Staff drew up an answer to this teletype. He
wrote the following: “Interrogation not yet concluded.” I went
to the commanding general with the draft of this answer, I
showed it to him and he initialed it.

Q. Now, Witness, were these commandos executed?

A. After three days the prisoners were shot. That was done
as a consequence of the Commando Order.

Q. Did you see the execution?

A. I was ordered to witness the execution as an observer and
representative of the Corps Headquarters, in order to avoid at
all costs the occurrence of irregularities during the execution.
This means that the corps headquarters was interested in having
the prisoners summarily shot under observance of all regulations
and rules of military tradition and honor, as ordered.

Q. Who gave the order to kill these commandos?

A. This order was given by the Chief of Staff to First
Lieutenant Vogt who was the commander of the squadron. First
Lieutenant Vogt was the man who prepared, carried out, and
organized the execution.

Q. Now, Chief of Staff Koestlin, gave the order for the execu-
tion, and the execution was carried out by First Lieutenant Vogt,
is that right?

A. Yes, that is how it was.

Q. How many of these soldiers were executed?

A. Thirty-one were shot.

Q. Did that include the first two British paratroopers captured
at the end of June?

A. They were also part of that group — they were included in
the 31 prisoners.

Q. And the only ones not executed were the three soldiers who
were wounded in the raid, is that right?

A. Yes. These three men were still in the Hotel Dieu in Poitiers
in custody of the Security Service.

Q. And all others were shot?

A. Yes.

Q. Who carried out this execution — what troops?

A. The bicycle squad.

Q. The bicycle squad which was subordinated to the LXXX
Corps, is that right?

A. Yes.

Q. And your best —

Presiding Judge Young: I am advised that it will be necessary
to stop for just a moment because they are having difficulty with
the sound machine. The Tribunal will take a short recess.

116

(Recess)

The Marshal: The Tribunal is again in session.

Presiding Judge Young: You may proceed.

Mr. McHaney : Witness, the American airman captured in this
group was executed too, was he not?

Witness Schoenig: He was shot, together with the 31 Eng-
lishmen. The reason given was that he was with them in the
Maquis and had also participated in the acts of sabotage.

Q. If I suggest to you the name, Lieutenant Bundy, do you
recall that that was the name of this American airman?

A. No, I cannot recall any name. My English is not very
good, and I couldn't recall English names after all this.

Q. Did you have any proof that this American airman was
actually working with this British paratrooper unit?

A. The interrogations must have revealed that.

Q. Witness, will you tell us in your own words what you
remember about the execution which you witnessed?

A. During the execution I stood rather apart, in such a way
that I was not seen either by the Englishmen or by the Ger-
mans. The execution took place in a clearing in the woods. It
seems important to me to state here that before the execution
the prisoners were told by the interpreters that the execution
was taking place by order of the Fuehrer and Supreme Com-
mander of the Armed Forces. They were told that this was done
because they had parachuted down far behind the lines, had
carried out acts of sabotage, had worked in conjunction with
the Maquis ; and had organized, led and supplied the Maquis with
arms.

Q. Will you tell us just how many men were used in the
execution and how it was carried out, just what happened as you
saw it?

A. In the execution squad there were two riflemen for each
prisoner. In addition there was a number of master sergeants
who were to give the coup de grace after the execution. They
chose master sergeants because there were not enough officers
available. A medical officer was present to certify that death
had occurred. These things, however, had nothing to do with
me; First Lieutenant Vogt, who was in charge of the execution
dealt with all that.

Q. Did the soldiers die immediately?

A. I was under the impression that they did, because the
salvo was fired from a short distance, about four or five meters,
and it was aimed at the heart.

Q. Where were they buried?

117

A. The corpses were buried in two previously prepared mass
graves. These graves had been dug at a certain distance from
the place of execution by the execution squad.

Q. Witness, you have used the German phrase “standrechtliche
erschiessung” [summary shooting] to describe this execution, is
that right?

A. That was what the Chief [Chief of Staff] called it.

Q. Was there a court martial before this execution?

A. Not to the best of my knowledge.

Q. What happened to the identity tags of these soldiers who
were executed?

A. On my instigation and in agreement with the Chief of Staff,
the identity tags of all the dead persons were passed on to the
First Army headquarters with the request to send them via the
International Red Cross to the British Government. This was
to be done so that the next of kin should not be left in doubt or
anxiety about the fate of their relatives, and particularly so that
they should not be left in uncertainty.

Q. Witness, don't you know that that American flyer had simply
parachuted from his disabled plane and was just by chance
with this British unit in an effort to avoid capture?

A. I did not know that he was only by chance with the British
men.

Q. Were you, General Gallenkamp, and Colonel Koestlin tried
by the British for the killing of the 31 soldiers?

A. Not I, because I was not responsible; I was only there as
an observer.

Q. You were tried, was the question asked, Witness. You were
tried with General Gallenkamp and Colonel Koestlin?

A. Yes, that is correct.

Q. And were you convicted, and if so, what sentence was im-
posed on you?

A. I was sentenced to five years' imprisonment.

Q. And your Chief of Staff, Colonel Koestlin?

A. Colonel Koestlin was sentenced to life imprisonment.

Q. And General Gallenkamp?

A. General Gallenkamp was sentenced to death and the death
sentence was later commuted to life imprisonment.

Q. I have no further questions at this time.

A. May I add something, please?

Q. Did you wish to say something, Witness?

A. I wanted to be allowed to say the following concerning
the Commando Order. The Commando Order as such was sacred
to the men in command of the corps headquarters, because it
hinted that these summary shootings were reprisals, — reprisals

118

for the Dieppe operation. That was the purely military aspect.
Seen from a purely humane point of view, the men in charge of
the corps headquarters considered it, to say the least, unpleasant,
because they thought it unchivalrous. That is the reason why
the corps headquarters did everything in its power and made
every effort to change the fate of these prisoners and to turn
them over to other agencies. That they could no longer do this
was due to other circumstances, and above all to the teletype
which in the meantime had arrived from the Commander in
Chief West, and to the armed forces report which had already
designated these Englishmen as being dead while they were still
alive.

Mr. McHaney : If the Tribunal please, I am advised by Mr.
Rapp that there was a translation mistake. I would ask the
indulgence of the Tribunal if he could explain it to the Tribunal,
or, perhaps, clarify it. I am not sufficiently familiar with the
German language to be able to do so myself.

Presiding Judge Young: He may do so.

Mr. Rapp : I merely have a question to the interpreter. I would
like to ask you what English term you have used to translate
the German word, “standrechtlich erschossen.” That is all I ask.

Interpreter Schaeffer: I cannot remember that it came up
just now. When it does come up I use “summarily shot”.

Mr. Rapp : Thank you.

CROSS-EX AMIN A TION

Dr. Leverkuehn (counsel for defendant Warlimont) : Witness,
you said that three wounded prisoners were sent to the Hotel
Dieu. That in French means a hospital, does it not, “Hotel Dieu?”

Witness Schoenig: Yes, that is the hospital in Poitiers. The
name of it was Hotel Dieu.

Q. You also mentioned that arms were found during the raid on
the camp in the woods. Do you happen to know exactly what
kind of arms were found?

A. Whether I can now give all the arms that were found seems
rather doubtful, but I do know that pistols were among them,
machine pistols, machine guns, daggers.

Q. When you say “daggers,” what do you mean, because a
dagger is really not a military weapon, is it?

A. They must have been the knives which our airmen, I believe,
also used in order to cut the strings of the parachutes. Those
were knives and the blade was then left in the shaft.

Q. I see. Witness, when you mentioned the two first prisoners,
you said that they appeared in a kind of clothing in which

119

you would not have recognized them as soldiers. Now in the
camp were other pieces of similar clothing found?

A. I don’t know that. Nothing of that sort became known to
me, because the booty was claimed by the SD and was left to the
SD. This was done because the SD was the organization in
charge of the raid. Of the whole booty the corps headquarters
only kept one jeep. Everything else was taken by the SD.

Q. Did I understand you correctly to state that you designated
this whole group of people as a paratroop unit ?

A. I do not want to call this group a “unit” in the military
sense of the word, because we did not learn anything about the
organization of the SAS [Special Air Service] units from the
prisoners.

Q. I see.

A. I call this group of 31 men a certain unit.

Q. All right. The results of the interrogations of these 31 men
who were later found in the camp which you raided, where did
the results go and who interrogated the men?

A. My interpreter interrogated these 31 men and the results of
the interrogations were passed on directly to the First Army,
but, as I have stated before, they were not of any great military
importance, because the men didn’t tell us anything about things
we were interested in.

Q. Do you remember whether anything transpired about any
connection with the Maquis?

A. Would you please repeat that question?

Q. Do you remember whether during these interrogations any-
thing transpired about any connection with the Maquis?

A. The connection with the Maquis was admitted to exist
by the British.

Q. I see. Would you be in a position to state today where
the written results, the records, and the protocols about these
interrogations could be found?

A. The question would be whether or not the army passed them
on, whether they seemed to be of sufficient importance to the
army to be passed on.

Q. Did you receive copies?

A. Undoubtedly we had carbon copies on 29 August, however,
the corps headquarters in Cargnon was surprised by an American
tank attack. All files which existed there were lost. Partly
they were burned, and partly they were probably captured by
the enemy.

Q. Just before you mentioned that on instructions of the com-
manding general, a teletype was passed on to the Commander

120

in Chief West to the effect that interrogations had not been
concluded.

A. Yes.

Q. And your next statement was in answer to the question
put to you that three days later the prisoners were shot. Now
what took place during these three days ; what happened ?

A. Immediately after the arrival of the teletype from the Com-
mander in Chief West, the Wehrmacht report arrived. Now in
the Wehrmacht report it was stated that during an operation in
southwest France, 43 enemy paratroopers were liquidated. This
“43” was an obvious mistake, a twisting of the figure of “34”
into “43”, it was just an error. Now apart from this what hap-
pened in the office of the la or the Chief of Staff? I don’t know,
and I had no right to ask about this. I only know that I asked the
chief of staff, after he had passed on Vogt’s task to him, whether
the paratroopers could not possibly be saved. The Chief of Staff
answered he was committed through an order he had received.
Furthermore he did not give an account of his intended actions.
It would not be customary for him to do so.

Q. He did not tell you whose order bound him?

A. No, he didn’t say.

Q. You and the Ic of the Army, or you and the Ic of the
Commander in Chief West, were you on such terms that you
could tell him your opinion of such occurrences and that you
could exchange opinions with him?

A. I was on such terms with the Ic of the Army. But on the
telephone I couldn’t do that. Our communications at that time
were all overheard by the French and the French interpolated
into our telephone conversations. On the occasions of executions
when Major Hay came to visit us I discussed this whole matter
with Hay. Concerning the Commander in Chief West, I had no
connection at all neither with the Ic nor any private personal
relations.

Q. Could I ask you please to spell the name Hay?

A. H-a-y.

Q. Hay. Thank you.

Presiding Judge Young : Any further cross-examination ? Any
redirect?

Mr. McHaney: Just a few questions, Your Honor.
REDIRECT EXAMINATION

Mr. McHaney : Witness, during the cross-examination these
three wounded paratroopers were adverted to. Would you please
tell the Court what happened to those three wounded para-
troopers?

121

Witness Schoenig: A few days, possibly two days after the
execution, I received a report from the SD to the effect that the
three wounded were brought to the Wehrmacht prison in Poitiers.
On my question why that was done, I was told some members of
the Maquis who had been wounded and taken prisoner and were
also accommodated in the Hotel Dieu, had been kidnaped by
the Maquis by armed force. The SD anticipated that the wounded
Englishmen would likewise be taken away from the Hotel Dieu
by force of arms, and that is why they were handed over to the
Wehrmacht prison.

Q. Yes, Witness, but what happened to them in the prison?

A. The wounded died after approximately 5 days in the prison.

Q. Were you familiar with the uniform of a British para-
trooper before June 1944?

A. Yes, but only on the basis of pictures because, what I saw,
were the first paratroopers, the first ones I had come across.

Q. These were the first ones you had actually seen, is that
right?

A. Yes.

Q. Was there ever any doubt whatever that these men were
British and American soldiers?

A. No.

Q. How many Maquis were captured in this raid when the
paratroopers were taken, Witness?

A. I don’t know that because they were apprehended by the
SD. I believe a number were taken at the same time but how
many there were I cannot tell you.

Q. Now Witness, you were the Ic of the Staff. Didn’t this
bicycle squadron report to you how many of these resistance
people they had captured — let me put it this way : Did you see any
of the Maquis who were captured in this raid?

A. No, because the action was carried out by the SD and we
made the bicycle squadron available only as an auxiliary unit.

EXAMINATION

Judge Hale: I would like to ask this of the witness. Was it
your information that three wounded paratroopers were executed
in prison by the SD?

Witness Schoenig: No.

Presiding Judge Young: The witness may be excused.

122

PARTIAL TRANSLATION OF DOCUMENT 1279-PS*
PROSECUTION EXHIBIT 165

MEMORANDUM OF 22 JULY 1944, INITIALED BY WARLIMONT, CON-
CERNING TREATMENT OF MEMBERS OF FOREIGN MILITARY MISSIONS
CAPTURED WITH PARTISAN BANDS

Armed Forces Operations StafF/Quartiermeister (Adm. 1)

No. 009074/44 Top Secret

22 July 1944

[Handwritten] One copy destroyed according to interrogation
Signed: Ihnen, 27 July

[Stamp] Top Secret

2 copies — 2d copy

Subject: Treatment of members of foreign “military missions”
captured with partisan bands

Note for an Oral Report

[Initial] W [Warlimont]

25 July

1. The Fuehrer has decided that members of Anglo-American
and Soviet Russian so-called “military missions,” captured in
the partisan fighting in the Southeast, are to be treated in the
same way as participants in a commando operation and not as
prisoners of war.

2. Separately from the above, the Office Group Foreign Coun-
tries [of military intelligence], following inquiries by the Reich
Security Main Office — military section — has put forward for de-
cision the question of how British and American soldiers, captured
with the partisan bands, are to be treated. The following are
opinions expressed by:

a. Commander in Chief Southeast — The members of Allied
military missions are to be handed over to the Security Service,
should the opinion below in b be inapplicable.

b. High Command of the Armed Forces /Prisoners of War Gen-
eral Office in conjunction with High Command of the Army /Army
General Staff /Foreign Armies West — Treatment as prisoners of
war in accordance with order : Armed Forces Operations Staff/Op

* See Nazi Conspiracy and Aggression, op. eit. supra, vol. Ill, pp. 857-862, for translation
of entire document.

893964—61 9

123

(Army) Armed Forces Ops. Staff/Op. (Army) No. 03408/43
Secret, dated 18 September 1943.

c. High Command of the Armed Forces/Chief of Prisoners of
War Section in conjunction with Armed Forces Legal Depart-
ment — Treatment as prisoners of war in accordance with order:
Armed Forces Operations Staff/Org. II No. 02958/43 Secret,
dated 8 July 1943, which disregards differences of nationality.
The only exception made is in the case of commando operations.
(Then they are handed over to the Security Service.)

d. Reich Security Main Office/Section IV — Fundamental treat-
ment as prisoners of war under the directives mentioned in b
and c, but a more definite ruling is required to decide whether
and in which cases they are to be handed over to the Security
Service.

e . Reich Security Main Office/ Military Section — Considers that
the Commando Order cannot be applied to partisan fighting in the
Southeast; that to do so would be dangerous in that it might
imperil those taking part in our own operations (Brandenburg).

No opinion on the question of foreign missions.

/. Office Group Foreign Countries — Fundamental treatment as
prisoners of war, unless the members of missions were taking
part in a commando operation.

g . Armed Forces Operations Staff /Op. (Army) — The same
treatment as the members of partisan bands themselves, i.e., as
prisoners of war if in uniform and captured or surrender in open
battle ; or executed if in civilian clothes or captured in a sabotage
or commando operation. [Paragraph g crossed out in original
document.]

3. Opinion and proposal of the Armed Forces Operations Staff
— According to the order issued to date even, for example, the
British captured in the “Roesselsprung” operation must be treated
as prisoners of war. This is in line with Op. CHI [crossed out
in original document] [operations-army] Order of 18 August
1943.

The Commando Order has never yet been applied to such mis-
sions, its extended application to cover them has not yet been
ordered. If the missions are to be treated otherwise than in ac-
cordance with the orders issued to date, it must first be decided
whether a foreign mission operating with the partisan groups in
the Southeast is to be called a commando operation and treated
as such. Such a decision seems to be indicated even if it does
not correspond completely with the wording of the Commando
Order or with the previous definition of a commando operation
(as an especially insidious and still unusual form of warfare
which must be combated with the appropriate countermeasures).

124

The principle must be adopted from the start that in the South-
east too, all members of partisan groups are fundamentally guer-
rillas. It is true that they are treated like prisoners of war for
reasons of expediency in order to obtain the largest possible
number of deserters and workers. There is no reason for this
with regard to the few members of foreign missions. There is,
therefore, no necessity to treat them in every case in the same
way as the members of partisan bands themselves. Basically, it
would be far more appropriate to consider Anglo-American as
well as Soviet Russian military missions as commando operations
and to treat their members accordingly.

The appended order is therefore proposed.

[Initial] P [Poleck]

23 July

[Initial] W [Warlimont]

*******

TRANSLATION OF DOCUMENT 537-PS
PROSECUTION EXHIBIT 166

DRAFT OF OKW ORDER, 30 JULY 1944, CONCERNING TREATMENT
OF MEMBERS OF MILITARY MISSIONS CAPTURED WITH PARTISAN

BANDS

Draft

The High Command of the Armed Forces

No. 009074/44 Top Secret Armed Forces Operations Staff/Quar-
tiermeister (Adm. 1)

Fuehrer Headquarters 30 July 1944
[Stamp] Top Secret

Subject: Treatment of members of foreign “military missions”
captured with partisan bands

In the area of the Commanders in Chief Southeast and South-
west members of foreign so-called “military missions” (Anglo-
American as well as Soviet Russian) captured in antipartisan
warfare, will not receive the treatment as specified in the special
orders regarding the treatment of captured partisans. There-
fore, they are not to be treated as prisoners of war but in con-
formity with the Fuehrer’s order concerning the destruction of

125

terror and sabotage units, dated 18 October 1942 (OKW/Armed
Forces Operations Staff 003830/42, top secret).

This order shall not be transmitted beyond corps headquarters
and staffs of the other branches of the armed forces on the same
level. It is to be destroyed after being made known.

The Chief of the High Command of the Armed Forces

[Initial] P [Poleck]

28 July

[Initial] K [Keitel]

29 July

Distribution :

Commander in Chief Southeast, 1st copy
Commander in Chief Southwest, 2d copy
General Staff of the Army, 3d copy
High Command of the Navy /Naval War Staff, 4th copy
High Command of the Air Force/ Air Force Operations Staff,
5th copy

Reich Leader SS and Chief of the German Police Command
Staff Reich Leader SS, Attention : SS Brigadier General and
Brigadier General of the Waffen SS Rohde, also for Reich
Security Main Office, 6th copy
OKW/General Armed Forces Office, 7th copy
Chief PW’s, 8th copy
Armed Forces Legal Dept., 9th copy

Armed Forces Operations Staff /Armed Forces Propaganda,
10th copy

Op. (Army, Air Force, Navy), 11th copy
Org, 12th copy
War Diary, 13th copy
Quartiermeister (Draft), 14th copy
Extra copies, 15-25th copies

EXTRACTS FROM THE TESTIMONY OF DEFENDANT WARLIMONT*

DIRECT EXAMINATION

* ❖ * H: * * *

Dr. Leverkuehn (counsel for defendant Warlimont) : Was the
term “commandos” a part of German military terminology?
Defendant Warlimont: No.

Q. When did you hear this term for the first time?

A. Approximately at the time when these documents were
drafted.

* Complete testimony is recorded in mimeographed transcript, 21-25, 28-30 June; 1, 2 July
1948; pp. 6312-7103.

126

Q. Were there German commandos too?

A. No.

Q. Was it brought to your attention that German agencies had
employed German commandos?

A. No.

Q. How did the so-called Commando Order originate in its
original version?

A. This order, was issued by Hitler in its original form as an
addendum to the armed forces communique dated 7 October 1942.
The text is shown in Document 1266-PS, Prosecution Exhibit
118, under section I.

Q. Who issued the armed forces communique? Was that a
task of your department?

A. No. The National Defense Department [of Armed Forces
Operations Staff] had nothing to do with the compilation and
issuance of the armed forces communique. The armed forces
communique was compiled in the Armed Forces Propaganda De-
partment which was later called the Wehrmacht Propaganda
Group. It was submitted by this department to Jodi. It was
frequently worked on very thoroughly by Jodi and who personally
submitted it to Hitler during the noon situation conference.

Q. Now, did Hitler usually concern himself with this armed
forces communique, and was he in the habit of effecting changes
therein?

A. Hitler read it word by word and frequently changed either
individual words or sentences and then drafted such additions as
the one we have before us.

Q. Now, how did you obtain knowledge of the text of the
armed forces communique, including such additions?

A. Every afternoon I found the armed forces communique
among the incoming matter in my office, and I read it.

Q. Now, what does this addendum state?

A. This addendum reads: “All terror and sabotage troops of
the British and their accomplices who do not act like soldiers
but like bandits will henceforth have to be treated as such by
German troops. They must be slaughtered ruthlessly in combat
wherever they turn up.”

Q. Do you recall any incidents which might have been the
reason for this unusual order in this unusual form?

A. Yes, I do. The first incident was the British landing at
Dieppe on the French coast in August 1942. German prisoners
had been shackled there by the British. Afterward we found
these prisoners with the shackles on. Thereupon Hitler had
ordered a reprisal measure which aimed at shackling the British
prisoners of war captured by the Germans in the Dieppe landing.

127

But I was not concerned with this question. This was dealt
with by Jodi alone in conjunction with an expert from the
Foreign Counterintelligence Department. Occasionally he also
enlisted an expert from my Quartiermeister section.

Q. About how long before this armed forces communique of
7 October did this Dieppe raid occur?

A. The Dieppe landing took place in August 1942. If I am
not mistaken on 22 August. That was approximately 6 weeks
before this date. There was another incident which was the
immediate reason for Hitler to issue this addendum to the
armed forces communique. That was a British raid on a Ger-
man “commando” [Kommando] on the British Channel Island
of Sark.

Q. Now, you just used the word “commando”. You meant
the term in its German connotation, didn’t you? That is a small
troop detachment?

A. Yes, I did.

Q. Will you please revert to this incident on the Island of Sark?

A. This German detachment on the Island of Sark consisted of
about 8 or 10 engineers. A raid was made on them by about
twice that number of British. They were pulled from their
beds in the middle of the night and, without any clothing, were
put in chains and deported ; when they tried to resist, several of
them were killed while they were shackled. One or the other
of them succeeded in escaping and they spread knowledge of this
incident.

Q. Did you hear at the time whether any other reports were
available to Hitler which might have induced him to issue such an
order?

A. I was told that similar reports were available to Hitler from
Africa and other theaters of war.

Q. Do you know that there was a British service regulation
about so-called “irregular warfare”?

A. Yes, I do. Either in connection with these incidents or
somewhat later I had a copy of this British service regulation
in my own hands.

Q. What struck you about it?

A. The essential thing I recall is the picture of a soldier which
occupied a full page of this service regulation. Either in the
arm pits or below his shoulder, he wore a pistol on each side
hidden beneath his uniform. He was pictured with his hands
up, and from the picture it could be seen that from these pistols,
strings connected through his sleeves so that when he lifted his
arms to show that he was about to surrender, he could still fire
these hidden arms against his opponent. In addition I recall

128

that the chains which these commandos had to use were also
described. These shackles were so-called “death slings”. They
were to be applied in such a manner that with every movement
which was different from the movement the man was prescribed
to perform, he was bound to strangle himself in these shackles.
A series of further regulations dealt with the fact that these
soldiers were to be equipped with rubber gloves in order not to
leave any traces, and that they were to blacken their faces when
they were operating at night and similar matters of a completely
unsoldierly nature.

Q. Do you recall that in this combat regulation there was
mention that every soldier, in order to use the British term,
in such a situation had to be a “potential gangster”?

A. No, I had forgotten that, but in fragments of the regula-
tion which I saw again here I found the term again.

Q. And that the British were ordered to kick an opponent ?

Mr. Rapp : 1 object, Your Honor, to this type of examination.
Up to now I think we have been extremely lenient. The witness
has told what he knows, and I think this type of leading question
is objectionable.

Presiding Judge Young: If the Doctor wishes to offer it, I
think that's the best way to arrive at this testimony. If you have
it and wish to submit it?

Dr. Leverkuehn : I’ll submit it.* Do you recall that at the time
publications appeared in the German press about this so-called
“irregular warfare”?

Defendant Warlimont: Yes, I do. For one, this adden-
dum to the Wehrmacht communique dated 7 October 1942 was
commented upon in the German press in conjunction with the
incidents at Dieppe. A further report was featured in the
German press on 16 or 17 October 1942, in which a series of
similar incidents were enumerated.

Q. What was your interpretation of this type of warfare? Did
you regard it as complying with international law or contrary
to international law?

A. Now, if the premises were actually correct and if the regu-
lations were really applied by the individual soldier, then in my
view, he put himself outside the pale of international law and all
decent military tradition.

Q. Now, according to your knowledge as a soldier of inter-
national law, did you think that a reprisal was justified and
proper ?

A. Yes. Above all I thought it was necessary to prevent Ger-
man soldiers being shot down at the very last moment by a

* Document Warlimont 106, Warlimont Defense Exhibit 104, reproduced below in this section.

129

member of the enemy armed forces who walked toward them
with his arms up, ostensibly to surrender.

Q. Did you understand Hitler’s intentions such as they were
conveyed to you by Jodi to mean that reprisal measures were
intended ?

A. Yes.

Presiding Judge Young: May I just ask a question here?
Is a reprisal measure a military or a civilian act?

Defendant Warlimont : My legal qualifications and knowledge
are not adequate to answer your question, Your Honor. At any
rate, in my view, the individual commander cannot impose a
reprisal measure, only the government can do so; to this extent
I think it is a political act.

Q. Then you would say if it’s a political act that a military
commander never has authority to decree or determine reprisal
measures ?

A. That is my view, Your Honor.

Q. That’s your understanding of international law?

A. Yes.

Q. And do you understand that civilians have a right to deter-
mine reprisals?

A. No.

Q. That’s all.

Dr. Leverkuehn : May I ask you again, didn’t you think that
Hitler was authorized to impose reprisals under international
law as Supreme Commander of the Armed Forces and head of
the German State?

A. I believe I said the very contrary. That, as head of the
German Government, he was the sole person authorized to impose
reprisal measures.

* * * * * * *

Q. I’ll revert to Document 1266-PS, Prosecution Exhibit 118.
You have acquainted the Tribunal with the first section, that is
the announcement which was appended to the armed forces com-
munique, and if I understood you, you received a communication
and an order from Jodi?

A. Yes, the order which was given to me by Jodi is repro-
duced correctly on the whole in section II of the document. Jodi
had commissioned me with the translation of this announcement
contained in the armed forces communique into military termin-
ology. I had not been present during the issuance of the order
by Hitler and thus, I could only learn more particulars from
Jodi. In the case of this directive which was reproduced here by
my assistant, Colonel Tippelskirch, I stated that the order

130

had to be drafted very carefully and with circumspection, and 1
referred to the Commissar Order, discussed here this noon. Now
this reference could only have one meaning, that I believed by
our cooperation in the drafting of the Commissar Order we had
substantially contributed to the mitigation and restriction of
the scope of the order and that it thus became virtually inopera-
tive, and I wanted to attain the same objective in this case.
In the same section II, I requested the Quartiermeister section
first to establish contact with the Armed Forces Legal Depart-
ment and the Counterintelligence Office of the OKW, the two
agencies which had experts on international law.

Q. Now what instructions did you give regarding its contents?

A. I had to comply with the instructions received by Jodi in
section III, and I stated that members of commandos who had
not been killed in action were to be turned over to the Security
Service after close interrogation by the military counterintelli-
gence agencies. They were not allowed to be accommodated in
prisoner of war enclosures.

Q. Now, what else happened? What was done by the Armed
Forces Legal Department and the Office Foreign Counterintelli-
gence?

A. The Armed Forces Legal Department submitted on the
same day a draft for such an order, this is contained on page 2 of
Prosecution Exhibit 118. It is evident, however, that a civil
servant, a Ministerialrat, of the Armed Forces Legal Depart-
ment, apparently without further contact with his department
chief, had merely made it his task to couch the contents in the
form of a military order, but it is not a properly completed piece
of work. I, myself, as is evident from page 3 of the original,
called Admiral Canaris on the telephone.

Q. Where was Admiral Canaris and the Armed Forces Legal
Department, and where were you?

A. At that time I was in or near Vinnitsa in the Ukraine.
Admiral Canaris and his office and the Armed Forces Legal De-
partment were both in Berlin.

Q. I beg your pardon. I think I interrupted you, Witness. You
wanted to make some more statements.

A. I wanted to add that during this telephone conversation I
requested Admiral Canaris for his advice and, at the same time,
conveyed to him the draft the Armed Forces Legal Department
had already made.

Q. Now, according to your view, what was the starting point
from which to mitigate the written version of this order appended
to the armed forces communique?

A. In my view, all depended on not generalizing this order.

131

That we were to avoid all violations of international law on our
part, and that only such members of enemy commandos were to
be called to account as had really been guilty of violations of
the laws of war. That could not be decided by an order such
as was demanded in this case, but it had to be left to the discre-
tion of the commander at the front. In the draft order which
was demanded, one had to leave them a certain amount of latitude
so that they in turn could make the correct decisions in the
proper way in all cases.

Q. Will you please look at Prosecution Exhibit 118 on page 4
at the bottom, and will you see how this matter proceeded?
That’s page 5 of the original document.

A. You will find a note there by an expert of the Quartier-
meister section from which it is evident that meanwhile the head
of the Armed Forces Legal Department had concerned himself
with the question. He had directly established contact with
Jodi and conveyed his opinion to Jodi. His opinion was in effect
that he thought it necessary to hold a joint conference of all
agencies involved to be held in Hitler’s headquarters. That is, a
conference to be attended by Jodi, Canaris, and himself, the head
of the Armed Forces Legal Department. Before that, he ex-
pressly stated, he could not submit a draft and thus, he did not
identify himself with a suggestion which one of his assistants
had previously made.

Q. Thus, the formulation was handled by three members of the
OKW who were higher in rank than you, is that correct?

A. Yes. Whereas the National Defense Department, according
to Jodi’s directives, was endeavoring to make a draft, negotia-
tions about the very same matter were conducted on a higher
level.

Q. Will you please turn to Document 1264-PS, Prosecution
Exhibit 119? That’s on page 13.

A. It’s Exhibit 119 which contains a draft order from the
Office Foreign Counterintelligence of the OKW. Thus, the
Foreign Counterintelligence Office complied with the request
which I had discussed personally with Admiral Canaris. In this
draft the application of the order is limited to such members
of commandos as were encountered, contrary to the laws of war,
either without a uniform or in German uniform.

Q. And what was to be done with them?

A. It is evident from the suggestion that they were to be dealt
with according to martial law and commandos who were cap-
tured in uniform were to be handled in a different manner.
Canaris suggested in each case to seek a decision of the Armed

132

Forces Operations Staff in conjunction with Canaris’ office and
the Armed Forces Legal Department.

Q. What did you do with this draft order of the office of
Canaris, the Foreign Counterintelligence Office?

A. I sent this draft to the Armed Forces Legal Department as
is revealed by page 5, and I requested very urgently that a final
comment be made since a whole week had elapsed in dealing with
it. All this correspondence thus passed from Berlin to the
Ukraine and the Ukraine back to Berlin.

Q. Will you please turn to the next document, NOKW-003 ;
that is Prosecution Exhibit 120, on page 18 of the English.

A. This again is a note by one of my assistants who had once
again discussed it with the Chief of the Armed Forces Legal
Department and the latter, in the course of the conversation had
voiced the very urgent wish to talk to me. This consultation took
place on 15 October, as is evident from the right hand top
corner. In this connection I conveyed to Dr. Lehmann that I
also thought the conference which he had suggested was ex-
pedient, but I further stated that a decision had to be made
by Jodi ; I myself could not summon such a conference.

Q. Now, what progress does Prosecution Exhibit 121 show,
that is Document 1265-PS?

A. Exhibit 121 contains first a teletype by Canaris ; on page 3
of the original you will find a communication from the Armed
Forces Legal Department which reveals that the Armed Forces
Legal Department declared itself in agreement with the draft of
Canaris. A notation at the top of page 3 of the original shows
that this communication was immediately conveyed by telephone
by my Quartiermeister section to the head of the Armed Forces
Operations Staff, Jodi.

Q. This is followed by a comment, that is on page 5, I think,
the comment by the Armed Forces Legal Department. Now, we
will turn to Document 1263-PS, that is Prosecution Exhibit 122.*

A. This document contains a note for an oral report by the
Quartiermeister section and on the last pages is also a draft of
an order, dated 14 and 15 October 1942. Actually only the
draft order had been called for, as it appears on page 7 of the
original. Now, I on my own initiative, added this note for an
oral report. The draft of this is contained on pages 1 and 2 of
the original dated 14 October 1942. The fair copy is on
pages 3 and 4 dated 15 October. On page 5 you will find — that is
page 5 of the original — a previous draft which starts with the
words: “As ordered a draft order,” etc., “is submitted.” The note

* Document reproduced in part earlier in this section.

133

for an oral report was in effect submitted to Jodi, that is the note
on pages 3 and 4 of the original dated 15 October 1942.

Q. Together with the draft order which is on page 6 of the
original. Is that right?

A. Yes, I believe it is page 7.

Q. Yes, you are right; it's pages 7 and 8. What remark did
Jodi make regarding your suggestions? First of all tell me
what does this draft order aim at?

A. The draft order aims fully at what I previously stated, that
only “individual attackers,” as it is stated in section 2, saboteurs
or agents who had deviated from the basic laws of warfare,
according to the troops, and thus put themselves outside the
pale of the laws of war were to come under this order. The
photostat shows that the essential words, or those words which
I considered essential were inserted by me in my own hand-
writing. Again this draft order does not call for any reports
in order not to get the troops into that dilemma. I tried to
circumvent the turning over of possible prisoners of war to the
Security Service, as suggested to me for this order, by inserting
in section 4 — a military interrogation must precede any turning
over to the Security Service. Now, I would like to say some-
thing about the note for the oral report. I appended it in order
in this manner once again to emphasize to General Jodi the
various comments of the department dealing with international
law, that is Canaris' office, and the Armed Forces Legal Depart-
ment, which had been secured during this week of correspondence.
It was expressly prohibited that I voice my opinion in any
different manner at that time.

Q. Now, what was Jodi's view regarding this draft order?

A. First, Jodi made some remarks on my note expressing his
disagreement. In the same manner he made remarks showing
that he disagreed on the draft from Canaris' office, the
Foreign Counterintelligence Office. At the end of section (a)
on page 6 there is a “no” handwritten by Jodi; and further to
the bottom at the end of the draft, you will find another mar-
ginal comment by Jodi, “no good either” ; but I did not see these
remarks of Jodi's at the time because I was no longer concerned
with these matters afterwards.

Q. Will you please turn to Document 523-PS, Prosecution
Exhibit 123*, that is, on page 26 of the English Document Book IV.

A. The first page of this exhibit contains once again the copy
of the draft order as made by the departments to which I just
referred. Everything that follows was done by Jodi. The photo-
stat which I have before me contains both handwritten remarks

* Ibid.

134

by Jodi and the instruction to Jodi's personal clerk, whose name
also appears, and from the typescript you can see that it is a
completely different typewriter. I was no longer concerned
with this.

Q. Now, what you just stated was the instruction to Jodi's
clerk, is that what appears on page 4 of the original, on the top?

A. Yes, next to it are the letters Dae, because the clerk's
name was Daenicke.

Q. Now, will you just dwell on this page 4 for a minute. In
the German document book this is followed by a handwritten
remark dated 17 October 1942 — “refused by Hitler." You have
the photostat, do you recognize the handwriting?

A. That was certainly written by Jodi, no doubt, and it was
initialed by Jodi.

Q. In the same passage you will find another notation, “Chief
of Staff of the OKW," followed by the symbol “WFSt/Quartier-
meister/Administration."

A. That is the same letterhead which was contained on the
very first draft which I had submitted and which was repro-
duced indiscriminately without any change in the subsequent
drafts.

Q. Now, what do you infer from the subsequent pages of this
Document 523-PS?

A. First, I would point out the corollary to this remark by
Jodi on page 4 of the original, on the top. He says “Refused since
the order is not clear enough for the troops" ; which shows that
the gist of my suggestion had been rejected, because this gist con-
sisted in leaving it to the discretion of the troops to make a
decision as to whether any violation of international law had
occurred. From the subsequent pages of the Document 523-PS
it is evident that Jodi himself had three more drafts made; they
are contained on pages 7 to 11 of the original.

* * * * * *

Q. In this connection I shall also put to you Prosecution Ex-
hibit 1270 — correction 1269. I shall leave the sequence which I
have set myself for a moment and turn to this document which is
Document NOKW-2906.*

A. This is a note for an oral report from the Quartiermeister
Department; it is signed by me and addressed to Jodi. It is
dated 26 November 1942, that is, more than a month after
Hitler’s order had been issued. In this note for an oral report
it is stated that the General Staff of the German Army deems it
necessary to withdraw those copies of the Commando Order

* Document reproduced earlier in this section.

135

which have been distributed beyond the headquarters of armies.
The General Staff of the German Army moved that this be done
in accordance with its jurisdictional authority in the eastern
theater. I take up this suggestion in the note for an oral report
and I ask Jodi to bring about a decision to the effect that this
order be destroyed generally, not only in the East, at echelons
lower than army level. The purpose here again was to contribute
to the fact that this order be forgotten and disregarded.

Q. Will you please glance at the last sentence in this note
for an oral report?

A. In the last sentence I point out to Jodi that the Commando
Order of Hitler dated the 18th of October, in accordance with
Jodi's oral report to Hitler, was provided with a special distri-
bution list and a special notation to the distribution list. I stress
this fact particularly because, according to this, I was not in a
position to make any different decision nor was Jodi, since even
the distribution list for the Commando Order, as is revealed by
this sentence, was ordered by Hitler himself.

Q. That would refer to the distribution list which can be found
in Document 498-PS* [Pros. Ex. 124] at the end of the document
on page 4?

A. Yes, that is correct. That is the distribution list to which
this sentence refers.

Q. As a rule, who gave instructions as to how orders were to
be distributed to subordinate troop units?

A. That was an office matter of a technical nature which the
office chief himself would regulate.

Q. Then this was an exception?

A. Yes, this was a very special exception.

Q. Now, is this Hitler Order dated 18 October 1942 in accord-
ance with your suggestions?

A. No. Nothing was left either in substance or in wording
of my suggestions, which I included in my draft order dated 15
October on instructions from Jodi. My suggestion was never
brought to Hitler's attention because in the most decisive aspects
Jodi had changed it before it was even shown to Hitler.

Q. And one of the essential points was the turning over of
the decision to the troops?

A. Yes. According to my opinion and to my wishes, that was
the most decisive factor and, as can be seen from the photostatic
copy, Jodi crossed it out in the first draft in his own hand-
writing.

Q. Do you know that in his testimony before the International
Military Tribunal Jodi made a statement to the effect that for all

* Ibid.

136

practical purposes he had no connection with the Commando
Order? 1

A. Yes, I know that, and I not only know that, but I also know
that he said at the time that his staff, that is I, drew up a draft
on my own initiative. Here again I am afraid his memory failed
him. It is evident that this drawing up of a draft was not done
on my own initiative from one of the documents which was dis-
cussed just now, which starts with the words “As ordered, a
draft is submitted herewith."

Q. Now, as to Document 523-PS, Prosecution Exhibit 123, 2
you have no doubt in identifying Jodi's handwriting in several
places in the photostat?

A. I have not the slightest doubt that it is Jodi's handwriting.

Q. I shall now put to you Document 503-PS, Prosecution Ex-
hibit 125, contained in document book 4 of the prosecution, on
page 39 of the English text and page 50 of the German text.

A. Immediately following Hitler's Commando Order he issued
a further explanatory order. This again was drafted by Hitler
himself exclusively, as I learned immediately at the time. In
this order he states reasons for issuing the order. He compares,
among other things, the activity of the commandos with the
partisan warfare in the East. In this connection I should like
to state that in doing so he made exactly the same statement,
as is contained in the British regulation, because therein it says
that the members of commando units are to fight in the same
manner as partisans. Furthermore, the special significance of
Hitler's additional order is to be seen in the fact that in the
last paragraphs which are on page 7 of the original he threatens
heavy punishment for all those who disobey his order. I should
like to read the sentence “Officers or noncommissioned officers who
fail through some weakness are to be reported without exception,
or in certain circumstances — when there is danger in delay — to

be called to strict account at once."

* * * * * * *

Q. I shall now put to you NOKW-004, Exhibit 149. 3

A. This document consists of two parts. I would like to discuss
the earlier incident first. The date is 18 May 1943. This is a
communication from the chief of the Prisoner of War Affairs,
addressed to the Armed Forces Operations Staff, Quartiersmeister
section. Therein it is inquired whether, if members of enemy
commando units are killed in action, they are to be reported in
the customary manner to the enemy state. After some long con-
sideration this communication was answered by the Armed

1 Jodi's testimony concerning the Commando Order is contained in Trial of the Major War
Criminals, Nuremberg, 1947, vol. XV, pp. 318 ff.

2 Document reproduced in part earlier in this section.

3 Document reproduced earlier in this section.

137

Forces Operations Staff on 25 May. It bears my signature, by
order. In this reply I state that reports to the enemy state
in such instances should be avoided. The reason, which is not
contained in the communication, was the following: I knew and
I had initiated myself, together with Canaris, that the troops
were to make false reports in this respect. I did not know the
report channels of the Prisoner of War Department, and I had
to fear that through these reports a new channel would be
opened for Hitler and other agencies to control and check these
incidents and events. This had to be avoided at all costs. For
this reason it is expressed in this reply that according to the
opinion of the Armed Forces Operations Staff reports of the
death of commando units are not to be made. I added, however,
since I was not in a position to make any decisions in that sphere,
that it was to be left to the chief of the Prisoner of War Affairs
to obtain a decision from the Chief of the OKW.

He H* * H* H* He

Dr. Leverkuehn : The defendant has asked me to make a
supplementary statement to some of the testimony given by him
yesterday. I had asked him whether there were such units as
commandos with the German armed forces, and he answered in
the negative, but this morning he asked me to make a statement
about this.

Presiding Judge Young: Does the defendant desire to make a
statement?

Dr. Leverkuehn: Yes.

Mr. Rapp: I would like to find out, Your Honor, if this is to be
a change in the testimony he made yesterday, or whether it is
merely an elaboration on it. I think that is rather important.

Presiding Judge Young: Well, the Tribunal cannot tell what
that is. I suppose while he is on the stand he has a right to
explain or to make any statements he desires with respect to his
testimony, so you may proceed.

Defendant Warlimont: Defense counsel asked me yesterday
whether there were such units as commandos with the German
Armed Forces. I answered that question in the negative. In
doing so, perhaps I adhered too strictly to the term “commando”.
In addition, perhaps I adhered too strictly to the particular
method of fighting which was customary with the British Com-
mandos. I omitted, however, to add that in the German Armed
Forces, in the Office Foreign Counterintelligence, there was a
similar organization. That was the so-called Brandenburg Regi-
ment, which was later extended to Brandenburg Division. This

138

division, after the dissolution of the Office Foreign Counter-
intelligence, was for a temporary period subordinate to the Chief
of the Armed Forces Operations Staff, Jodi. This regiment,
which later became a division, consisted of selected men who
were particularly suitable for military purposes, and most of
them had some knowledge of foreign languages. In contrast
to the British Commandos, however, these men were, to the
best of my knowledge, only committed in the scope of large-scale
combat actions. They were used for operations which demanded
particular military bravery. I do not know that this regiment
or its members were under any special regulations or provisions.
Their method of fighting was to be carried out completely in
accordance with the provisions which prevailed for the rest of
the armed forces. During the time when this division was
subordinate to the Armed Forces Operations Staff, to the best of
my knowledge special operations did not occur at all. At this
time the members of this division were mostly gathered into
battalions and attached to particular divisions for special tasks.

Dr. Leverkuehn : Were any discussions about international
law ever held in connection with this division or with this regi-
ment, to the best of your knowledge?

A. No, I never heard of any such discussions.

* * * * * *

Q. Let's now discuss Document 510-PS, Prosecution Exhibit
154. 1

A. This is a teletype from the OKW, Armed Forces Operations
Staff which was dealt with by the Quartiermeister Department.
The date is 26 February 1944. The communication is addressed
to the Commander in Chief Southeast [von Weichs] . 2 The Com-
mando Order is referred to in this communication. The reason
given is that on 19 and 23 February, British Commandos had
landed on the Dodecanese Islands of Patmo and Piscopi. I recall
this incident. Hitler was particularly annoyed because these
British Commandos had apparently operated from waters under
Turkish sovereignty. In addition these islands were only manned
by weak German forces. Hitler was particularly angry because
substantial losses had been suffered on the German side and the
commandos had escaped unmolested.

Q. You, therefore, had received a directive from a higher level
to make renewed reference to this order, or did you do this on
your own initiative?

A. No, I was there when these incidents were discussed in

1 Ibid.

2 Defendant in the case of United States vs. Wilhelm List, et al.. Case No. 7, Vol. XI.

893964—51 10

139

the military situation conference, and in the customary manner
Jodi gave me the directive during the situation conference:
“Make a renewed reference to the Commando Order.”

Q. Did you know how the Commando Order was handled up to
that time in the area of the Commander in Chief Southeast?

A. I knew that too, through General Foertsch 1 who was the
Chief of Staff of the Commander in Chief Southeast. I knew that
the Commando Order had not been applied up to that date.
According to the principles with which I was familiar, no mis-
givings need exist that this renewed reference would change any-
thing in the state of affairs.

Q. Do you know whether, by virtue of this reminder on your
part, a change was effected and steps were taken in accordance
with the Commando Order?

A. No. I know nothing to that effect.
*******

Q. I shall now put to you Document NOKW-227, Prosecution
Exhibit 155. 2

A. This document contains a number of teletype messages which
apparently all deal with commando units. It seems they were
taken from the files of the Commander in Chief Southeast, not
from the files of the Armed Forces Operations Staff.
*******

They deal with a commando operation on the Island of Alimnia
in the Aegean Sea. These messages show that in a commando
operation in April 1944, among others an English radio operator
and a Greek sailor were taken prisoner; that they had been
captured and not annihilated in the first clash with German
troops was, as a matter of fact, a violation of the Commando
Order. To the best of my recollection that was not objected to
at the time by Hitler because here again, he assumed that Turkey
had violated its neutrality and he wanted to investigate the
matter further.

It is further evident from the teletype, from the third teletype
on page 2 of the original, that such an investigation was carried
out in which the German Foreign Office participated. Since a top
level Reich agency outside of the armed forces participated, this
instruction can only have been given by Hitler himself. It is not
evident from this document who passed this instruction on to the
Commander in Chief Southeast.

Q. What else can you gather from this teletype? Was the
investigation carried out?

1 Ibid.

2 Document reproduced in part earlier in this section.

140

A. Yes, the investigation was apparently carried out and lasted
from April until June, because on page 3 of the original there is
yet another teletype. I beg your pardon, it is page 2 of the
original. This is a teletype from the OKW addressed to the
Commander in Chief Southeast, dated 4 June 1944. Therein it
is stated that the prisoners, after the conclusion of the investi-
gation, were no longer needed, and I shall quote the last words,
“may be released for special treatment according to the Fuehrer
order”. This teletype is not available in its original version, but
only in the form in which it was allegedly received at the office
of the Commander in Chief Southeast. In typewritten letters
my name is at the bottom of the document preceded by the words,
“By order”.

Q. Do you recall the name of the Island of Alimnia, or do you
only remember an occurrence which took place at the time because
Turkish sovereign waters were concerned?

A. Turkish sovereign waters and their exploitation by British
commandos played quite a part at that time, as I stated before,
and I remember these incidents well. However, I cannot recall
having heard the name “Alimnia” then. Even today I don’t
know whether there is such an island, or where it is located.

Q. As a rule, commando matters, according to your previous
testimony were dealt with in your Quartiermeister department,
is that correct?

A. Yes, exclusively.

Q. In the signature under this teletype, however, there is a
notation, “OKW Armed Forces Operations Staff Ic.” What does
Ic mean in your language, has that any connection with the
Quartiermeister department?

A. No, there was no such designation in the Quartiermeister
department at all. On the staff we did have a liaison officer to
the Office Foreign Counterintelligence, who dealt with the com-
pilation of enemy information. In fall 1942, he had joined the
department as our new member and in the abbreviated corre-
spondence language he was designated Ic.

Q. The letters “Ic” are followed by “II”, and then follows the
secret file number. What does “II” mean after the letters “Ic”?

A. “II” means that the matter was dealt with in a group II of
this subdivision Ic ; but this subdivision Ic on the staff didn’t have
a group II at all. The Ic only consisted of the Ic officer, and an
assisting officer. As a consequence I cannot give any explana-
tion for the fact that this sign was allegedly used in this group
of my staff.

Q. Apart from the Ic in your staff was there another Ic, perhaps
attached to Jodi?

141

A. Yes. In the course of the investigations connected with this
incident I encountered this officer. At the beginning of 1944,
Canaris’ office, with his most essential sections, had been trans-
ferred to the Reich Security Main Office. It was therefore re-
moved from the organizations of the armed forces and the OKW.
Remnants of this office were newly concentrated in a special
department in spring 1944. That was a department which, for
a time, went under the designation of “Department for Front
Reconnaissance and Troop Counterintelligence Matters”. This
department was also called Armed Forces Operations Staff Ic. I
conclude, therefore, that this teletype was dealt with in the
department which I have just described, because it had several
groups.

Q. Where did this department have its location? In the
Fuehrer’s headquarters or where was it located?

A. This department was located in Berlin or in Potsdam as a
dispersion measure, but not in the Fuehrer’s headquarters.

Q. How does it happen that your signature appears on such a
document if this department to which you have referred was
not subordinate to you?

A. The only explanation I can give is that the chief of this
department, who sometimes came to Fuehrer headquarters from
Berlin, reported orally about this matter to Jodi. Thereupon, he
might have received the instruction to handle the matter in such
and such a manner and he no longer had time to obtain Jodi’s
signature. Therefore, he reported the facts to me, and obtained
mine “By order” of Jodi. However, I do not recollect this.

Q. In the address it states “To the Commander in Chief South-
east Ic”. When you sent teletypes was it usual for you to send
them to the Ic of the Commander in Chief Southeast?

A. No. My official contact was not with the Ic departments.
On my level, I communicated with the chiefs of staff of the
various commanders in chief, whom I also knew personally. In
the closest circles of the Armed Forces Operations Staff it was not
customary to add anything like that to the address. However,
I just notice here that an inquiry from the Ic with the Commander
in Chief Southeast preceded this teletype.

Q. From what do you derive this?

A. It is mentioned in the letter heading.

Q. According to this, who made the inquiry?

A. The Commander in Chief Southeast.

Q. And what officer on his staff?

A. The Commander in Chief Southeast Ic.

Q. I would like to draw your attention to the stamp which is

142

noted on page 2 of the original, the receipt stamp. There you
see the stamp Commander in Chief Southeast.

A. Yes, and also under the line “Commander in Chief South-
east” there is in parenthesis “Army Group Command F” and then
again to Group Ic counterintelligence officer, number, etc.

Q. The addressee was the Ic/AO. What does “AO” mean?

A. “AO” means counterintelligence officer.

Q. Therefore, an officer in Canaris’ organization, is that right?

A. Yes. To the best of my knowledge, with the higher command
authorities the Ic and the counterintelligence officer shared one
agency. Therefore, the officer of Canaris’ organization was a
member of the Ic group.

Q. Did you have any reason to assume that officers of Canaris
were going to carry out the Commando Order or were not going
to carry it out?

A. According to Canaris’ instructions, which I knew, concerning
this subject matter, I had every reason to assume that members
of his organization had been instructed not to carry out the
Commando Order as far as it was in the power of the members
of his organization to prevent its being carried out.

Q. About this question we shall submit Document Warlimont 18,
[Warlimont Ex. 20], extracts from interrogations in the case
of the “Southeast Generals.” 1

Let us now discuss Document NOKW-013, Prosecution Exhibit

156. 2

A. This is a report from the Chief of Staff of the Commander
in Chief Southeast, addressed to the OKW/Armed Forces Opera-
tions Staff, for my attention. In this teletype report it is stated
that the Bulgarian Army will also carry out the treatment of
enemy agents and saboteurs in accordance with the Commando
Order.

Q. Does the photostat tell you anything about whether or not
Hitler concerned himself with this matter?

A. Yes. From the photostat I can gather that this report had
to be submitted to Hitler, and was in actual fact submitted to
Hitler on 16 June, the day after it had been received. I conclude
from this fact that Hitler himself had requested this information
to be addressed to the Bulgarian armed forces.

*******

Q. Let us now discuss Document 506-PS, Prosecution Exhibit

158. 3

1 Commonly known as the "Hostage Case" (United States vs. Wilhelm List et al., Case No. 7,

Vol. XI.)

2 Document reproduced earlier in this section.

3 Ibid.

143

A. This is a communication from the Armed Forces Operations
Staff, Quartiermeister Department, and this copy here is a draft.
It is addressed to the Armed Forces Legal Department. The date
is 22 June 1944. From the communication, the following becomes
evident. The army group judge advocate, that is the judicial
official with Army Group Southwest [Commander in Chief South-
west], on 20 May 1944 inquired of the Armed Forces Legal
Department, whether the Commando Order was to apply only to
groups of persons or also to individuals. Undoubtedly this is
merely a theoretical inquiry. The Armed Forces Legal Depart-
ment, as is further evident, passed on this inquiry to the Armed
Forces Operations Staff. I submitted this inquiry to Jodi after
having delayed it for some time. On his order, more than a month
later, on 22 June 1944, I passed on information to the effect that
commandos consisting of only one person were also subject to
the order, because according to Hitler’s order there was no doubt
left about this.

Q. Did you inform other agencies also about this fact and did
you pass on any orders?

A. No, this information was merely sent from the Armed Forces
Operations Staff to the Armed Forces Legal Department. It does
not constitute an order. It is information passed on from one
agency to another.

Q. Do you know of any cases involving commandos consisting
of one person?

A. No, neither in connection with this theoretical inquiry nor
at any other time.

Q. Concerning this subject matter we shall submit an affidavit
by General Westphal, the Chief of Staff with the Commander in
Chief Southwest, as Warlimont Document 41 [Warlimont Defense
Ex. 43].

We shall now discuss in a body Prosecution Exhibits 159 and
160. Exhibit 159 is Document 531-PS 1 , and Prosecution Exhibit
160 is Document 530-PS. 2

Will you comment on these documents, please, General?

A. These two documents belong together because of their con-
tents. Exhibit 159 is a note for an oral report. Exhibit 160 is a
draft of an order which was originally attached to the note for
an oral report as an enclosure. This second document is crossed
out. As to the contents I should like to make the following ex-
planatory statement. The Commander in Chief West asked, on
23 June 1944, approximately 2 or 3 weeks after the landing in
Normandy, for an explanation of Hitler’s Commando Order. He

1 Ibid.

’ Ibid.

144

states in this written request that [the office of] the Reich Security
Main Office in Paris still continues to adhere to Hitler’s order.
He, however, the Commander in Chief West, was of the opinion
that after the beginning of the Allied landing, the whole of the
French area was to be regarded as combat area. For the appli-
cation of the Commando Order this fact was most important be-
cause the Commando Order, in its version of 18 October 1942,
excluded, according to its paragraph 5, the application of the
order if large scale combat actions were involved. The Com-
mander in Chief West continues to report in this communication
that for the time being he had agreed with the police agency in
Paris to the effect that a line was to be established which was to
define the combat area in Normandy. This demarkation line
was to stretch from the lower Seine River through Rouen, Argen-
tan, to Avranches, that is, fairly close behind the actual combat
area. To the front of that line, the Commando Order was not
to be applied. That was the contents of the request.

Q. During that time were you in a position to expect Hitler
generally to revoke the Commando Order?

A. After all my experience in the daily situation conferences,
I had to regard this as out of the question ; but, of course, I went
to Jodi first of all with this request in order to receive instruc-
tions as to how to deal with it. I was not in a position to make
a decision about it myself.

Q. And what were the instructions you received from Jodi?

A. Jodi, without even asking Hitler, said it was completely
impossible that in this situation the Commando Order could be
revoked or even amended in the West. He instructed me to draw
up a corresponding answer.

Q. Did you feel that you were in a position to meet the wishes
of the Commander in Chief West halfway, and did you contact
him or one of his officers?

A. This again brought me into a very difficult situation and I
considered very thoroughly what could be done in order to satisfy
the justified needs of the Commander in Chief West and to miti-
gate somewhat the Commando Order. In these considerations I
arrived at the idea that one could possibly help the Commander
in Chief West by not tying him down to a fixed line as he had
suggested, but putting him instead into a position where he was
to adhere to an instruction which was not rigid. In other words,
he was to make his actions dependant on the fluctuating combat
situation. In the formulation of orders this could be expressed
by not determining a demarkation line dependent on the area,
such as the Commander in Chief West had suggested, but asking
him instead to make his decisions dependent on the combat situa-

145

tion which, in this case, applied to the area from which his
reserves for the combat were to be drawn. Thus, the idea orig-
inated to exclude the application of the Commando Order for the
whole of the area including the area of our own Corps reserves.
In order to examine the correctness and suitability of this idea,
I contacted the Chief of Staff of the Commander in Chief West on
the telephone. I told General Blumentritt the following: “What
you have requested cannot be carried out. Isn’t it possible to
handle it in this manner?” In other words, “Can you not in this
manner suggested by me, circumvent the Commando Order?”
General Blumentritt thought this was a good solution and he
agreed to it. Thereupon, this idea was included in my comment
and in the draft of the order which I submitted to Jodi.

Q. The Security Police and the Security Service are also men-
tioned in the order. Why was this necessary?

A. It was necessary because it was evident from the request
of the Commander in Chief West that this request had originated
from conferences with the police in Paris. As a consequence, a
provision had to be included which would at least seem to con-
tain a satisfactory solution for the Security Service.

Q. And how did you picture the practical execution of this
suggestion? Did you think that the people had to be turned over
to the Security Service or to the Security Police?

A. No. I believed I had taken precautions against such a con-
tingency through the provision just discussed which preceded this
paragraph. According to this provision the troops could at all
times decide themselves whether enemy commando members were
to be treated as such or not at that time. Therefore, now approxi-
mately 2 years later, I reverted to the same principle which had
guided me when I dealt with the matter in October 1942. I
wanted to leave the decision to the troops, and undoubtedly the
troops have the most healthy judgment in all such instances.

Q. According to your draft how was the order to be announced ?

A. Orally.

Q. About this subject matter we shall submit Warlimont Docu-
ment 43, [Warlimont Defense Ex. 45], an affidavit executed by
General Blumentritt who has been mentioned just now.

Now, let us discuss —

A. May I briefly refer to Prosecution Exhibit 160? This docu-
ment is the draft which I just commented on. It had been elab-
orated in this manner by my Quartiermeister department, upon my
instruction. In particular I would like to draw your attention
to the distribution list at the conclusion of Prosecution Exhibit
159 where it states “Chief OKW through Deputy Chief, Armed
Forces Operations Staff.” I did not consider it proper to submit

146

this draft to Keitel directly. Therefore, I crossed out the word
“Deputy” and passed on the draft to Jodi. Jodi, in turn, crossed
out the draft, as Prosecution Exhibit 160 shows. He crossed out
both pages of it.

Q. Therefore this order was never carried out.

A. Not in the wording which we have here.

Presiding Judge Young: That is, 160 was never carried out;
Prosecution Exhibit 160.

DR. Leverkuehn: Yes. Document NOKW-005, Prosecution
Exhibit 161 is contained in English document book 4, on page 126.

Defendant Warlimont: This is a note written by me and
addressed to the Quartiermeister department of my staff. The
date is 25 June 1944. In this note I inform the Quartiermeister
department of the reason for Jodi’s crossing out the draft which
was discussed now, and I pass on information about his new
instructions concerning the drafting of a new order. The sub-
stance of this note is that the order was to be couched in informal
terms and that it was simply to be clearly ordered that all
sabotage units found outside the actual combat area in Normandy
were to be treated in accordance with the Commando Order. In
paragraph 3 the particularly feared instruction is contained that
a report is requested, in this case even a daily report is demanded.
I can only assume that in the meantime Jodi had told Hitler about
the matter and that this was the effect of Hitler’s instructions.
Thus, the very same was repeated that had happened in October
1942.

Dr. Leverkuehn : I should like to discuss with you, Document
551-PS, Prosecution Exhibit 162.* This is the continuation of
the matter which we have just discussed. The document contains
two drafts to the orders addressed to the Commander in Chief
West, and finally, the fair copy of this order. In chronological
sequence the first draft is the one which is contained on page 3
of the original.

No translation into the English has been made of this part
of the document to the best of my knowledge ; therefore, as Docu-
ment Warlimont 19 [Warlimont Defense Ex. 21] we shall include
the complete translation of Exhibit 162 in our document book.
The Court will not be able to follow everything the witness says
on the basis of the documents now available to the Court.

Will you please continue, General?

A. This draft which was now drawn up in accordance with
Jodi’s instructions is, in spite of this, couched in approximately
the same terms as my original draft. Above all, the provision
was taken over into this version that the area including that

* Ibid.

147

of our own corps reserves was to be excluded from any appli-
cation of the Commando Order. But, the efforts to retain the
original draft did not succeed ; this can be gathered from the fact
that many handwritten amendments are visible in this order.

Q. Whose handwriting?

A. I am afraid I cannot state this definitely, but I feel inclined
to assume that it is the handwriting of the man who was then in
charge of the Quartiermeister department, Colonel Poleck. On
page 1 of Prosecution Exhibit 162 there is a further draft bearing
the same date, which takes into consideration the amendments
entered on the first draft. Jodi has added to this draft that the
Commander in Chief Southwest in the Italian theater of war was
to receive corresponding instructions. In the meantime, there-
fore, Jodi had accepted the basic idea contained in the draft.
Keitel also saw the draft and in his own handwriting entered into
the distribution: “10. Commander in Chief Southwest”. The
third document on page 5 of the original and subsequent pages is
the teletype as it was finally sent to the Commander in Chief
West bearing Keitel’s signature.

Q. Do you know of any further commando incidents which hap-
pened in the area of the Comander in Chief West?

A. No. Until I gave up my office in the first days of Sep-
tember 1944, no such occurrences were brought to my attention.

Q. In the order parachutists are also mentioned. Does that
portion of the order constitute an innovation, an intensification
of the order dated 18 October 1942?

A. No. This instruction is also one which I had received from
Jodi and which probably originated with Hitler, namely, that
the parachutists had to be mentioned especially. In this par-
ticular case we managed to add this to the instructions in such a
form that nothing was changed in the valid orders of this type.
Above all therefore, paratroopers were still to be excluded from
the Commando Order in normal combat actions, and of course,
parachutists who were forced to bale out.

Q. Were parachutists who were sabotage agents included in
the original Commando Order?

A. Yes, they had been specially mentioned there also.

Q. Now, how was this order to be distributed?

A. The order was first of all sent to the Commander in Chief
West, then to the Commander in Chief Southwest who had been
included by Jodi. In addition, to the two High Commands of the
Air Force and the Navy; also to the military commanders in the
West; and, finally, to the Reich Leader SS, Command Staff. This
order was distributed to considerably fewer agencies than the
original Commando Order.

*******

148

Q. Now, let us discuss Document 1279-PS, Prosecution Exhibit
165.* This document consists of several parts.

A. Yes.

Q. Will you please comment on them?

A. The document consists of a note for an oral report. In the
photostatic copy, there are three versions; in the mimeographed
copy I only find two versions. Attached is the draft of an order.
The contents refer to an occurrence which had taken place in the
antipartisan fighting in the southeastern theater. In May or
June 1944, a large scale operation had been carried out against
Tito’s headquarters. Within the scope of this operation a para-
chute battalion had been dropped in the immediate vicinity of this
headquarters. Members of enemy military missions had been
captured during this operation and Hitler had seen in this a
reason to order that members of the enemy military missions who
were with the bands were to be treated in the same way as mem-
bers of commando units. This Hitler order, however, only
referred to antipartisan fighting and to the theaters of war in
the Southeast and the Southwest, that is the Balkans and Italy.
As to the Balkans I would like to add that Hungary and Slovakia
were not considered part of the southeast theater of war. From
this note for an oral report, which was worked out in the
Quartiermeister department, it is evident that the British who had
been captured during the operation against Tito’s headquarters
just mentioned, had been treated as prisoners of war. This is
stated at the beginning of paragraph 3; however, we could not
avoid dealing further with this Hitler order. For this purpose
on 22 July, I was for the first time shown a note for an oral
report, which I countersigned on 25 July. I objected to various
paragraphs of it, and refused to deal further with the matter
until it had been changed. If I remember correctly, I wanted
to gain time in order to ensure safety for the prisoners who had
been captured during the first operation.

The second version of the note for an oral report is the one
which is contained first in Prosecution Exhibit 165 ; it is dated
27 July and was submitted to me on 29 July. Once more I made
an attempt to delay further the final drafting of the order, which
can be seen from the marginal note at the top right hand corner.
That states: “Why this further discussion after the decision has
been reached about [paragraph] 1?” With this I meant to say
that a further discussion of this kind was not necessary. Seeing
that Hitler had given the order orally, it should be left alone
unless a better suggestion could be made. I wanted to avoid
issuing the order in writing. However, the members of my staff

* Document reproduced in part earlier in this section.

149

who dealt with this matter, at least that is how I remember it,
informed me to the effect that in the meantime the Reich Security
Main Office, a police agency, had raised the question of how the
British and American soldiers were to be treated who had been
captured during these antipartisan operations. The experts sug-
gested to me that the question of military missions, which Hitler
had already decided at any rate, would better be submitted in this
form as an order now in order thus to avoid an extension of
Hitler’s instructions to American and British soldiers who might
be captured during antipartisan operations. This idea I found
reasonable, and thereupon I further submitted the note on it with
the corresponding draft order.

Q. Did you see any further possibilities, in spite of the order,
to help in this situation?

A. I didn’t quite understand the question.

Q. I asked you whether you saw any further possibilities, even
after an order had been issued, to formulate the practical execu-
tion of the order according to your wishes ?

A. Yes. To our knowledge, at that time, military missions had
not yet appeared in any other place in the Southeast or Southwest.
This had been the only instance. If such a case were to occur
again in the future, I could expect with certainty that the com-
mand agencies concerned, or their chief of staff would make
inquiry with me before any actual steps were taken.

Q. Were you notified of any instances where this order was
applied?

A. No. Not as long as I remained in office.

Q. Now, let us discuss Document 537-PS, Prosecution Exhibit
166.*

A. These are various further drafts of the order just discussed,
dated 30 July 1944. From this document it becomes evident that
Keitel signed the order subsequently. No initial of mine is con-
tained on the order.

* sf: * * * *

Q. Please give us a summary of your attitude towards the
Commando Order.

A. I tried to prevent the original Commando Order of Hitler
which was attached to the armed forces communique on 7 October
without my knowledge, from being changed into a written order.
I did this, because I assumed that in the form of an addendum
to the armed forces communique, it would very soon be for-
gotten and therefore would probably have been scarcely applied
at all. When this solution proved to be impossible in 1942, I

* Document reproduced earlier in this section.

150

then drew up the draft which has been very extensively discussed
here, and I was, and I am still convinced that the contents of this
draft were absolutely admissible within international law. I had
no influence at all on the fact that Hitler a few days later himself
issued the Commando Order in its well known form, and I also had
no influence at all on the fact that this order was distributed and
how this order was distributed. Subsequently, I did everything
possible, together with other people in the armed forces who
thought as I did, in order to prevent the application of the order.
I hoped that thereby the Commando Order, which was originally
presented to me as a reprisal measure, would not take any effect
at all and that, therefore, these reprisals would be rescinded
again as occurred with the shackling of the British prisoners of
war. My efforts, however, were brought to naught by the British
Service Regulation during this period which at that time was
known to the German agencies and also to Hitler; this service
regulation stated that the commandos were not to act as soldiers
but as gangsters. These instructions were never withdrawn, and
as a result our efforts with Hitler to rescind the Commando Order
had to remain unsuccessful. However, I always held the con-
viction that the limitations which were made by the Commander
in Chief West in summer 1944, led to the Commando Order being
limited to a very great extent. For the rest, I am convinced that
many or several incidents in these war years since 1942, were
treated according to the Commando Order without the actual
wording Commando Order justifying this.

* * * * sj: * *

EXAMINATION

Judge Harding : What was to happen to these flyers
[commandos] if they didn’t try to escape, or weren’t killed in
combat ***?

Dependant Warlimont: Then, as the order runs, they were
to be killed in battle.

Q. But suppose they weren’t killed in battle and didn’t try
to escape, then according to the order what happened to them?

A. This was not provided in the Commando Order, so that the
commander was in a position to act on his own initiative and on
his own opinion.

Q. Your contention is that there is nothing in the order that
required him to shoot these people even if they weren’t escaping?

A. The order demands, Your Honor, that commandos are to be
shot in combat or in flight, and that is how the wording runs,
as far as I can remember it.

Q. Isn’t that merely a subterfuge, this escape, trying to escape,
like it was used by the Security Service?

151

A. No, Your Honor, I never interpreted it in that way; but in
another passage it states that such members of enemy commando
units who fall into the hands of the armed forces in some other
way are to be handed over to the Security Service. These other
ways are described as, for example, if the members of the com-
mando units are caught in some way by the police or even by
indigenous inhabitants and then handed over to the German armed
forces, that is, not in combat.

Q. Hadn’t the phrase “trying to escape,” “shot while trying to
escape,” been given a special meaning in Germany just like
“special treatment,” that was accepted widely, at least accepted by
the police as a method of execution?

A. I know that term was used, but I am of the firm conviction
that no soldier thought about that when reading this order and
neither did I.

*******
CROSS-EX AMIN A TION

*******

Mr. Rapp: Now Witness, on one occasion during your direct
testimony, you amended your previous testimony during direct
examination and you stated that the German armed forces did,
in fact, have commando-like units such as the Brandenburg Divi-
sion; but you said that units of the Brandenburg Division were
employed only in large scale operations as opposed to the British
commandos, and they were generally attached to other troops ; you
did make that statement, did you not?

Dependant Warlimont: Yes.

Q. And you further stated, Witness, that this Brandenburg
Division, operated under the over-all supervision of the Canaris
department?

A. Yes.

Q. The same Canaris that has been mentioned very often in your
direct testimony as a rather good acquaintance of yours?

A. Yes.

Q. Furthermore you stated, Witness, that the Brandenburg
Division fought along the same lines and with the same methods
applicable as to the Geneva Convention, as, in your opinion, at that
time the rest of the German armed forces were also fighting; is
that correct?

A. Yes. There were no special regulations for them.

Q. Now I would like to show you Document NOKW-069, Prose-
cution Exhibit 1634,* cross-examination.

* Document not reproduced herein. See testimony of defendant Warlimont below in this
section which quotes part of this document.

152

Presiding Judge Young: It may be admitted in cross-examina-
tion.

Mr. Rapp: Witness, before I discuss this document with you,
I would like first to ask you a preliminary question. Do you think
that reprisals against prisoners of war are permissible?

Defendant Warlimont: I know that in general, reprisal
against prisoners of war is not allowed.

Q. Here is a document before you signed by, I believe, General
von Pfuhlstein, the commander of the Brandenburg Division in
the year 1943, and it discusses a contemplated raid against
Marshal Tito’s headquarters. I would like to ask you to read
the paragraph numbered 6, on page 3, into the record, so as just
to get an idea of what these people intended to do — where it
says “Two previously killed persons (hostages)”.

A. “Two previously killed persons (hostages) are camouflaged
as English parachutists and are dropped on a release site with
objects necessary to complete the camouflage in such a manner
as to make it seem an accident. The parachutists will carry with
them a supply shipment consisting of original allied objects,
(medical supplies, clothing, rations). The shipment includes a
sealed gift package addressed to Tito personally which explodes
when opened.”

Q. And then the next line.

A. “The following original allied objects are required for that
in detail.” Shall I read it all?

Q. You see this “(1) Parachutes” there?

A. Yes.

“(1) Parachutes, dropping wrapper, parachute clothing,
laundry, etc., for the parachutists.

“(2) Identification, note books, photographs, and articles
for use of the parachutists.

“(3) Original rations and original cigarettes.

“(4) Side arms and ammunition for the parachutists.

“(5) Medical supplies, bandages and drugs in fairly large
amounts, about 200 pounds.

“(6) Original clothing, in particular, shoes, underclothes,
and stockings as supply shipment.”

Q. Thank you. Now, Witness, I am sure you would not like to
state that the rest of the German army fought like the Branden-
burg Division; do you? Would you like to amend your testi-
mony to some extent now?

A. I did not know these measures until now; they must cer-
tainly have been exceptions.

Judge Hale: I notice in there under Arabic 2, section b, con-

153

templates an attack with poison and/or explosives. Do you
know what poisons were contemplated in such an operation?

Defendant Warlimont: No, I don't know, Your Honor. I.
am only looking at it now for the first time.

Q. You didn't know of any similar operation in any other
instance ?

A. No, Your Honor.

Judge Hale: That is all.

* * Hi % * * *

Mr. Rapp: Now, Witness, I would like to discuss for a few
more minutes Document 1263-PS, Prosecution Exhibit 122.* In
connection with that document, Witness, if you please, turn
now to the next to the last page of this photostat in front of
you, 1263-PS. I would like you to acknowledge to me that the
following additions or changes of this draft are in your hand-
writing, paragraphs 1, 2, and 3, and then the entire paragraph 4,
is that correct?

Defendant Warlimont: No.

Q. Then please correct me.

A. I made changes in paragraphs 1, 2, and 3. Under para-
graph 4 I did not rewrite the whole paragraph, but I added
one sentence at the beginning in addition to the one that is
already contained there, and in that sentence I also made one
change. Therefore, there are only changes contained here and
no additions.

Q. Very well. Now, would you please read to the Court the
change that you have made in paragraph 4, that is to say, will you
read first of what it said in the draft?

A. Yes.

Q. And then how it reads after you changed it.

A. I will. In the original draft it says, “Confinement in
prisoner of war camps is prohibited." What I added was the
following: “4. If military necessity demands the temporary arrest
of individual participants, after military screening they are on
principle to be handed over to the Security Service." Apart from
that, in the original draft I added the following: “Confinement
in the prisoner of war camps is — even temporarily — prohibited."
These two words [“even temporarily"] I added.

Q. Now, the handwritten paragraph or change which you just
read into the record is proceeded by another handwritten note
consisting of about four lines.

A. Yes.

* Document reproduced earlier in this section.

154

Q. Where does that fit in? And after you tell us that, read
it to us, too, will you please?

A. These lines belong under paragraph 2.

Q. Then read us 2 as it read originally, and then as it was
changed by you.

A. Originally paragraph 2 read like this: “In future an atti-
tude contrary to the rules of war has to be assumed if individual
saboteurs commit acts deviating from the basic rules of war,
such as murder or the destruction of valuable property, thus
placing themselves outside the rules of war.” This sentence in
German is fairly unintelligible. ***

Q. Now, will you —

A. This paragraph I changed as follows : “In future an attitude
on the part of terror and sabotage units contrary to the rules of
war” — I added to those words “has always to be assumed.” I
added the word “always”, and now I read the new sentence which
I added. “If individual attackers as saboteurs or agents, no
matter whether soldiers or in whatever uniform, carry acts of
violence or surprise raids, which in the opinion of their captors
deviate from the basic rules of warfare, thus placing themselves
outside the laws of war.”

Q. Now, the burden of your testimony is then, that after you
corrected Document 1263-PS, it was then retyped and submitted
to Jodi, and that is the second page of Document 523-PS, Prosecu-
tion Exhibit 123. 1

A. That is so.

Q. And you initialed it then, too?

A. Before I submitted it to Jodi, I did, yes. How very rough
and unfinished this was you can see from the fact there was as
yet no distribution list attached.

Q. Now, I would like to show you for a second, 598-PS, Exhibit
124. I did say 498-PS, is that correct? That is what I meant.

Judge Hale: You said 598.

Mr. Rapp: Document 498-PS, Prosecution Ex. 124 2 is what
it should be. Now, Witness, may I suggest to you that the points
as corrected by you were eventually incorporated into the final
Commando Order which you have now in front of you, with the
exception of some minor changes. Such terminology as, for
instance, that they were to be treated as commandos whether
they are in uniform or not, does appear in the final Commando
Order and was suggested by you originally in your own hand-
writing on Document 1263-PS, is that correct?

1 Document reproduced earlier in this section.

2 Ibid.

893964—51 11

155

Defendant Warlimont : No, that is not correct.

Q. Just a second Witness. Before we go any further 1 will
ask you now, is your testimony going to be to the extent that
none of the changes that you have made in your own hand-
writing, as contained in Document 1263— PS, Prosecution Ex. 122*,
was eventually incorporated into the Commando Order as it
appears under 498-PS, is that what you want to say?

A. That is exactly what I want to say, because the one had no
connection with the other.

Q. You mean they are not connected?

A. Purely externally, the draft which I changed partly in my
own handwriting, never came to the hands of Hitler at all. For
this very reason alone there can be no coincidence in the termin-
ology, or at least you cannot deduce such a coincidence. The ulti-
mate reason, however, is a different one.

Q. First do I understand you correctly? I am somewhat
baffled. Do you mean to say Hitler dictated the Commando Order,
is that what you want to say?

A. I haven’t understood your question.

Q. Do you mean to say that Hitler dictated or drafted the
Commando Order?

A. That is right, quite alone. That is what it says in the
documents, too.

Q. If he did it, why did he need Tippelskirch’s, Jodi’s and your
help? Why were you even told about it? Why didn’t he just call
in his secretary and dictate it ? Why waste your time ?

A. I wish it had been so, and I did wish at the time that it
had been so, but he requested it from his staff, although, of course,
he did not know whether Tippelskirch or I had actually added
even one letter to it. He never found out anything about that.
From this document, 523-PS, it becomes quite obvious to anybody
who is interested, that here five to six new drafts were designed
by Jodi, and that twice in the course of these days, from 15-18
October, he submitted his own drafts to Hitler personally, and
that on two occasions Hitler refused to accept them. Once Jodi
added in his own writing “the order is not clear enough for the
Fuehrer”. Then he sat down and made three new drafts, the
last of which he submitted to Hitler again, and Jodi wrote on this
one “Refused by the Fuehrer. Please make out your own draft
of the order.” Now, it could not be set down in the documents
clearer than that. Hitler never saw a letter of what I wrote
myself. That is what I said recently.

Q. That wasn’t really my question, whether he saw what you
had written. The point is whether or not he utilized, in some way

* Ibid.

156

or other, drafts prepared by you? Whether they’re in hand-
writing or in typewriting isn’t really material right now.

A. Now we come to the real reason for the coincidence which I
was just going to comment upon. The changes in handwriting
which I just had to read to you, I did not invent myself, but they
had been ordered to me or, at least, ordered to that effect. The
only difference between my departmental experts, as it were,
and myself in the carrying out of this order was that they tried
to shirk complying with it and writing it down. My view was
different, namely this: We cannot avoid having to write this
because Hitler would never leave such ideas once he had them.
Therefore, we have to try in another way to have these regu-
lations included in the same order. This I tried to bring about
through the turns of speech which I put in myself, if I may
come back to them. You will find among the changes made in
handwriting under paragraph 2, the following which I think is
the most important: “In the opinion of their captors”. With
this phrase I wanted to rescind all the other provisions which
had been ordered by Hitler himself and which had unavoidably
to be put in writing. Then, under paragraph 4, where the
handing over to the SD is dealt with, it becomes even clearer.
How should I, as an officer of the armed forces who had nothing
at all to do with the Security Service suddenly decide to issue
an order to the Security Service? That could only be ordered
by a higher authority; and through this note made in hand-
writing I tried to modify it by writing in my own handwriting
“After military screening”. This was my way out. These two
passages you will not find reproduced in Hitler’s draft, but you
will find his original desire which I could not circumvent in the
final drafting of this order.

Q. I didn’t ask you this question with reference to the Security
Service. I wasn’t referring to that. I submit to you that either
Hitler must have been a clairvoyant or you must have used the
Fuehrer’s language. Let’s just compare some other words used
by you and quoted by Hitler. May I call your attention to Docu-
ment 523-PS, Prosecution Exhibit 123, and also to Document
498-PS, Prosecution Exhibit 124. Now, in this Document 498-
PS, under paragraph 3, you will find, “I therefore order, from now
on all enemies on so-called commando missions in Europe or Africa
challenged by German troops, even if they are to all appearances
soldiers in uniform or demolition troops”, and then, under para-
graph 4 “If individual members of such commandos, such as
agents, saboteurs, etc.” Now, if you look under paragraph 2 of
523-PS you will find the identical language. There is not one
word different. Now, either you anticipated Hitler’s language or

157

he must have seen that document from a great distance and antici-
pated it. I would like you to explain that more specifically.

A. Well, first of all, I can’t follow you, that here only one word
was the same in both documents. For instance, I would like to
point out —

Q. Perhaps if I stated it in German you could understand it
and we could proceed a little more expeditiously. Let me show
it to you. Here it says, “If individuals as agents and saboteurs”.
You said, and I quote it in German ; “Wenn Einzelangreifer und
Saboteure”. Now then you said, “Gleichgueltig ob Soldaten und
gleichgueltig in welcher Uniformierung” and he said in his order
“To all appearances soldiers in uniform” which, translated into
the German language is just the same unless you engage in a
great hairsplitting contest.

A. I am rather inclined to assume the exact opposite because
the decisive thing here is not that one or the other word is exactly
the same. That can be easily overlooked. I think that the most
important thing here is that the word “commando” in my draft
does not appear at all, there is only mention of individual
attackers or saboteurs. That is, individuals. I particularly
avoided the word “commando”. Correct is that in my draft the
words appear “No matter whether soldiers” but this, as far as
I can see, only coincides with the word “commando” in Hitler’s
draft and that, after all, isn’t surprising. This coincidence, how-
ever, in paragraph 3, as well as in paragraph 4, does not come
from any particular visionary powers which I had, but it arises
from the fact, as I stated yesterday, that the first orders telling
me to deal with this matter at all were given to me in the same
text. Jodi told me all that before I drew up the draft. I think
that is a clear enough explanation. Those were Jodi’s ideas which
he, Jodi, had the first time; and Jodi conveyed them to me. I
thought it necessary for them to appear in this draft and then,
with corresponding other words which I have just read, I tried
at the same time to rescind them. Therefore, it is not astonish-
ing that Hitler, in his draft a few days later, came back again
to his original ideas.

Q. I understand it now. I was just under the impression, you
see, that you didn’t say that before. You said originally that
nothing in the final order was based on that order you had sub-
mitted, but now you say that order you had submitted was, of
course, nothing else but the carrying out of a directive that you
had gotten theretofore from Jodi, so that explains it.

A. I already said that yesterday.

Q. Why didn’t Jodi write the draft himself?

A. Well, in a military staff that’s not generally the custom.

158

He did it often enough, and I wish he had done it in this case
too. He actually did start it, as this whole document shows, after
he wasn’t satisfied with my draft.

* * * * * * *

PARTIAL TRANSLATION DOCUMENT WARLIMONT 106
WARLIMONT DEFENSE EXHIBIT 104

EXTRACTS FROM BRITISH SERVICE PUBLICATION "THE HANDBOOK
OF MODERN IRREGULAR WARFARE"

[Handwritten] For use by G (R) Officers
Not to be published

The information given in this document is not to be communi-
cated, either directly or indirectly, to the press or to any person
not holding an official position in His Majesty’s Service.

THE HANDBOOK OF MODERN IRREGULAR WARFARE

Pamphlet No. 1

The General Principles of Irregular Warfare
This is a security document and must not fall into enemy hands.
* * * * # * *

Modern Irregular Warfare

Few people appear to understand the meaning of the term
“irregular warfare”. Broadly speaking, it consists of various
kinds of subversive activity which may range from an indi-
vidual act of sabotage to the organization of a large and well-
trained guerrilla force. The personnel engaged in this type of
warfare may be as varied as the activities themselves.

(a) The activities of individuals; or small groups working by
stealth on acts of sabotage.

( b ) The activities of larger groups working as a band under a
nominated leader, and employing military tactics, weapons, etc. to
assist in the achievement of their object; which is usually of a
destructive nature.

(c) The operations of large groups of guerrilla forces such as
the Russians are now using, whose strength usually necessitates a
certain degree of military organization in order to secure their
cohesion and to make and carry out effectively a plan of campaign.

4c * 4: 4: 4: sic 4c

159

Shooting to live

You have all been taught how to shoot to kill, that is fairly easy.
How many of you know how to shoot to live? The whole object of
close combat gunplay is to shoot to kill and live? It is of little use
you trying to kill a man if you cannot kill him before he kills you.
Your value as a corpse is practically nil. Your value to the war
effort as a live and efficient killer is great. It is the duty of every
soldier to learn not only how to kill, but how to kill in the most
efficient manner and at the least possible risk to himself. The
only way to achieve this is to never give the enemy a chance, the
days when we could practice the rules of sportsmanship are over.
For the time being, every soldier must be a potential gangster
and must be prepared to adopt their methods whenever necessary.
In the past, we as a nation, have not looked upon gangsters and
their methods with favor; the time has now come when we are
compelled to adopt some of their methods, and the methods used to
subdue them to enable us to carry out certain types of operations.

To enable us to understand and use the gangster methods we
must become efficient in the use of their weapons. The chief
weapons of the gangster are the submachine gun, the pistol, and
when silence is necessary, the knife.

It is to be regretted, but unfortunately true, that most people
regard a pistol as a weapon of defense. It is not a weapon of
defense, it is a weapon of offense and a very effective weapon at
that. It is a certain killer up to a range of 400 yards and the
bullet will carry a distance of 1,530 yards when the weapon is
held at an angle of 35°.

Close Combat

In many circumstances it is necessary to liquidate opposition
without noise. This rules out firearms ; you must use a knife, a
bludgeon, or the weapons nature gave you.

Soldiers are taught unarmed combat mainly in terms of defense.
Here we are considering attack and counterattack. Remember,
you are not a wrestler trying to render your adversary helpless —
you have to kill. Do not bother, therefore, to learn a lot of elab-
orate holds and locks — concentrate on the killing blows, and the
locks and the movements that lead up to them.

Attack

Let us suppose, for example, that you are stalking a sentry,
You must dispose of him without noise. How are you going to
set about it? Circumstances will dictate whether you should use
a knife, a bludgeon or your hands. Let us consider first the use
of the hands only — a stranglehold from behind.

160

Step silently up behind your enemy, throw your right forearm
round his throat and grasp your left arm with your right hand
just above the elbow. At the same time, place your left hand
firmly behind his head, and push it forward, maintaining maxi-
mum pressure on his throat with your right arm. This sounds
complicated, but it is really very simple, practice it on a dummy —
or, with care, on a friend.

If you have a dagger and are skilled in its use you may be
able to dispatch the sentry silently by a stab. You must strike
to kill immediately and there are two ways of doing this.

(1) An upthrust from below the left shoulderblade into the
heart.

(2) A downstroke in the left side of the neck — less certain to
cause instant death.

In either case it may be possible to stifle a cry by clapping the
disengaged hand over the sentry’s mouth. A sentry who is not
wearing a helmet can be “coshed” with a bludgeon on any exposed
part of his head ; the base of the skull is the best place. A man
wearing a helmet is better stabbed or strangled. You will notice
that these attacks are from behind. To attack from the front
means risk of a shout before you can strike. Always remember
the most vulnerable parts of a man.

(1) His heart.

(2) The bones of his head.

(3) His windpipe and the veins of his throat.

(4) His privates.

(5) Any part of his spine.

And remember — you are out to kill, not to hold him down until
the referee has finished counting.

Counterattack

Consider first an encounter with an unarmed man, you yourself
being also unarmed. He jumps into your path facing you : what
are you going to do? Four general lines of action are worth
learning, practicing and remembering.

(1) Kick him (or knee him) as hard as you can in the fork.
While he is doubled up with pain, get him on the ground and
stamp his head in.

(2) Give him a quick jab under the chin with the heel of the
palm of your open hand, at the same time gouging his eyes with
your fingers and bringing your knee up to his fork. As soon as he
is on the ground, proceed as before.

(3) Chop (“rabbit punch”) with the side of your hand on any
vital part of the head or neck, i.e., the temples, chin, “adam’s
apple”, side of throat, back of neck, collarbone. To make the

161

chop effective, the fingers must be fully extended close together,
the hand being braced by the thumb extended at right angles to
the fingers. The blow is delivered at lightning speed, the point of
impact being the edge of the hand opposite the base of the thumb.

(4) Tackle him low — rugby fashion — round the legs, thus
bringing him to the ground to be dealt with as seems best.

Now consider an armed man stepping in front of you. What
can you do to overcome him and escape to get on with the business
in hand? He may have a rifle, a pistol, or a knife.

(a) He has a rifle and bayonet in the “on guard” position. As
he makes his “point”, fend it off with your right hand, step for-
ward and trap his left hand with both of yours — your left under
his palm grasping his wrist and your right over his fingers. A
sharp thrust outwards will throw him or make him release the
weapon. Another method is to strike the bayonet off to your
right with the palm of your left hand, take a pace forward with
your left foot, grasp the rifle with both hands and force it up-
wards and backwards, at the same time kicking the enemy in
the fork.

(b) He has a rifle without bayonet and attempts to knock you
out with a butt stroke. Take a step to your left and grasp his
butt ; cross over with your left foot, grasp the rifle with your left
hand, twisting it out of his grasp. Kick him in the fork as you
disarm him. Once disarmed, the enemy can be finished off with
his own weapon or by any other method which suggests itself.

( c ) He has a pistol in his right hand. Get as close to him as
you can and raise your hands above your head as wide apart as
you can, so that he has to switch his eyes from one to the other.
Bring your right hand down suddenly on the wrist of the hand
holding the pistol so that the muzzle is deflected past the left side
of your body. The pistol will almost certainly be discharged, and
before he can recock it you must jab him in the face with your
open left hand, at the same time kneeing him in the fork with
your left knee.

N.B. — If his pistol is in the left hand, the procedure is exactly the same,
with the muzzle deflected past the right side of your body.

( d ) He has a dagger. If he rushes towards you with his right
hand raised, raise your right hand so that his downstroke is par-
ried by your forearm. Do not parry too near his elbow or the
dagger may still get home although its force may be lessened.
Once the blow has been stopped, seize his right wrist with your
right hand and at the same time apply your left hand force to the
back of his upper arm, so forcing him to the ground and making
him drop the dagger. If he tries to strike with a dagger from
below, using an upward sweep of his right arm, the blow can be

162

stopped or parried with your left forearm. Then immediately
seize his right wrist with your right hand, and pull him toward
you, at the same time striking him hard across the throat or chest
with your left arm. Force his right arm across your chest, palm of
the hand outwards, and break the arm, forcing him to drop the
dagger.

But the enemy will not always be in front of you. He may have
let you pass and be stalking you. Suppose a voice says “Hands
up” or the equivalent, or two hands grasp you from behind —
what then?

a. A voice says “Hands up.” Fling up your hands, at the same
time glancing over your shoulder and measuring the distance to
your enemy with your eye. You may also be able to see what
weapon he has and in which hand he is holding it. If he has a
rifle and bayonet turn about quickly and try to carry out the
counter given above for a facing attack with a bayonet. Alter-
natively, drop to a crouching position, and dive for his legs before
he has time to shorten his point to stab you. A low tackle should
bring him down. If he has a pistol, turn about on your left
heel, deflect the weapon with the left arm at the same time
jabbing with your right hand to the face and your right knee to
the fork. This process is, naturally, reversed if he is holding his
pistol in his left hand.

b. Two hands grasp you by the throat. Seize his thumbs or
little fingers and break them back to make him release his grip.
Tighten your hold on his hands, and throw him over your head.
A vicious backward kick on the shins will help to make him
loosen his hold.

c. You are seized around your waist. Reach behind and grab
your opponent by his privates. Alternatively, reach between your
legs grab one of his legs and pull him off his balance. Follow him
as heavily as you can as he comes to the ground.

d. You are seized with your arms pinioned. Sink at the knees
and force your elbows outwards. Back-kick his shins, or throw
your head back in his face to disengage his hold finally.

Improvised weapons

Do not forget that good weapons are often lying about ready to
hand. A bottle with the bottom smashed off is more effective than
a naked hand in gouging an opponent’s face. A heavy ring on the
finger is as good as a knuckle duster. Even a large stone is not to
be despised.

In finishing off an opponent, use him as the weapon, as it were,
beating his head in on the curb or any convenient stone. In this

163

connection do not forget that a heavy boot will kill a man on the
ground just as well as the butt of a rifle.

The uses of a belt with a heavy buckle are well known; you
yourself will be able to think of scores of other homely weapons.

Concealment and care of arms

The most important two things to remember when concealing
arms are the following. Firstly, to conceal them in a place where
the enemy is not likely to look for them, and secondly to treat
them in such a way before hiding them that they will not suffer
from the effects of the elements. Places where arms can be
concealed are:

In the ground by burying. Choose a place where the earth has
already been turned up or else go far into the cultivation. The
best place very often would be in a ploughed field.

Replough after burying.

EXTRACT FROM TESTIMONY OF DEFENDANT REINHARDT*

DIRECT EXAMINATION

* * * * * * *

Dr. Frohwein (counsel for defendant Reinhardt) : Did you re-
ceive the Commando Order and Hitler’s amendment from the High
Command of the Army?

Dependant Reinhardt: Yes.

Q. Did you transmit the Commando Order to the units sub-
ordinate to you?

A. Yes.

Q. In what form was the Command Order transmitted to your
subordinate units?

A. I can’t tell you for certain, but I take it that mimeographed
copies were sent to the corps.

Q. Did you have any doubts then as to whether there were any
objections to this order arising from considerations of interna-
tional law?

A. No. The Commando Order was already known to us by the
promulgation contained in the armed forces communique. The
armed forces communique announced the Commando Order as
special reprisal measures. The text ran “against the British and
their helpers.” I received the order in writing subsequently. The
order consists of two parts : the first part, the Commando Order
proper, and the second part, the explanation thereto, which ema-

* Complete testimony is recorded in mimeographed transcript, 5-7, 10 May 1948; pp, 3334-
3639.

164

nated from the Fuehrer, from Hitler himself. This explanation to
the Commando Order clearly revealed that the measures provided
for were directed against the British and their helpers.

Q. Will you briefly tell the Tribunal about the passage which in
your opinion shows that? Have you got Document 503-PS, Prose-
cution Exhibit 125,* Witness?

A. “Great Britain and America will always find volunteers for
this kind of warfare as long as these volunteers can be rightly
told that their life is not imperiled/’ That is the principal
sentence.

Q. Now, what conclusion did you draw from the fact that only
England and America were specifically referred to?

A. It was clear for me that the Commando Order had no
validity in the eastern theater of operations.

Q. Now this view, that this order did not appfy to the eastern
theater, did you express it in any way in transmitting the Com-
mando Order?

A. I told my commanding generals about this order and con-
veyed my opinion quite clearly on the occasion of my visit to the
front lines.

Q. Now, what view did your subordinate commanders have re-
garding this order?

A. The same.

Q. Do you know of any cases within your army area in which
this Commando Order was executed?

A. No.

Q. Can you recall any incidents at all involving the execution
of the Commando Order in your area?

A. No.

Q. Why not?

A. The area in which I was committed in the East was com-
pletely devoid of industrial installations. There were no objects

in which such a sabotage unit might have been interested.

* * * * * * *

* Document reproduced earlier in this section.

165

5. THE TERROR FLYER ORDER

TRANSLATION OF DOCUMENT 1676-PS
PROSECUTION EXHIBIT 341

ARTICLE ENTITLED "A WORD ON THE ENEMY AIR TERROR" BY REICH
MINISTER DR. GOEBBELS, PUBLISHED IN THE "VOELKISCHER BEO-
BACHTER" MUNICH, 28 and 29 MAY 1944

A WORD ON THE ENEMY AIR TERROR
by Reich Minister Dr. Goebbels

It is no longer disputed by anyone today that the enemy air
terror pursues almost exclusively the aim of breaking the morale
of the German civilian population. The enemy wages war against
the defenseless, against women and children in particular, in
order to compel the men of our country to yield. This intention
of his is proved on one hand by the facts themselves, and on the
other hand by the abundance of existing statements published by
the enemy. As far as the facts are concerned one needs only to
visit one of the often bombed towns in the Reich or in the occu-
pied territories to determine without doubt by one’s own obser-
vation that our war potential is damaged by perhaps at the most
only 1 percent by the enemy air terror, and the remaining 99
percent plainly falls upon the civilian sector.

A short time ago the leading representatives of the French and
Belgian episcopates, who certainly cannot be suspected of acting
according to German orders, published a flaming protest in the
international press against the enemy’s barbarous methods of
aerial warfare, which kills old people, women, and children, as
well as destroys churches, venerable cultural monuments, and
thickly populated civilian residential sections, without any mili-
tary objectives being apparent. To this we need to add nothing
more.

Our enemies do not try to conceal their intentions in this
matter. One does not need to look far in the British or Amer-
ican press to find substantial proof of this. “Lay the great cities
in ruins and you will crush the will to fight”. Thus wrote the
English air expert, I. M. Spaight in his book, “Air Power and
the Cities”, already in 1930. Nothing in this tendency of the
British aerial warfare has changed since then. “It is not possible
to draw a boundary line between the civilian population and the
combatants”. With this cowardly excuse the “Daily Mail” seeks
to justify publicly this brutal and mean method of enemy aerial
warfare. Much more explicit is an influential British naval

166

officer who states in the English military periodical, “The Army
Quarterly”: “Does the concept of noncombatants exist at all?
A small child neither in peace nor in war is a useful member
of the national community. No one in reality has the right to
demand inviolability for himself even though he may attempt
to do so in the name of humanity. Germany must become more
desolate than the Sahara Desert”.

The well known London newspaper, “News Chronicle”, is not
missing in this choir of hatred. It adds, “We are for wiping out
every living being in Germany, man, woman, child, bird, and
insect. We would not let even a blade of grass grow”. This
causes the respected British author, H. G. Wells, to make the
following demand: “Treat the German people like a troublesome
native tribe.” The American publicists are no less rough. One
of their leading spokesmen, Raymond Clapper, writes with evident
pleasure : “Terror and brutality are the best sides of aerial war-
fare”. One might object, perhaps, that not all influential Amer-
icans and Englishmen think this way. Wrong ! Even the Angli-
can High Church declares in its official organ, “Church of
England”, on 28 May 1948 : “It is a perverse view of Christianity
to suppose that civilians must not be killed”. Even the Arch-
bishop of York, Dr. Cyril L. Garbett, blesses the barbaric methods
of the Anglo-American aerial terrorism in his pastoral letter of
June 1943, with the words: “It is only a small evil to bomb Ger-
man civilians.”

We have so far desisted from making known to the German
people the most despicable of the statements from which we have
only given a small selection, and which altogether represent a
plain demand for the murder of women and children, because we
were afraid that, in the face of this cynicism it would take meas-
ures of self-defense and revenge itself with the same measures
upon the enemy pilots who bail out of shot-down enemy planes.
In the meantime, however, circumstances have arisen which
prevent us from continuing to maintain this reserve in the future.
The Anglo-American terror flyers in the last few weeks, besides
indiscriminately bombarding the residential quarters of our cities,
without any even superficial respect for the international rules
of warfare, have taken to shooting down German civilians openly
and slaughtering them in cold blood. No more excuses can be
brought forward in this matter, because the enemy planes sweep
low over villages, fields and highways, and direct their machine
guns upon harmless groups of people who are going about their
business. This has nothing to do with war. This is naked
murder. There is no rule of international law which the enemy
can invoke in this matter. Through such criminal methods of

167

warfare, the Anglo-American pilots place themselves outside the
pale of every internationally recognized rule of warfare. Last
Sunday, for example, to take only one of a thousand examples, in
the rural districts of Saxony, groups of playing children were
fired on by aircraft and suffered considerable casualties.

No one will be astonished that the amazed population, which,
as is known in the whole world, fully understands any soldierly
type of warfare, has been filled with rage at these cynical crimes.
It is only possible with the aid of arms to secure the lives of
enemy pilots shot down during such attacks, for they would other-
wise be killed by the sorely tried population. Who is right here?
The murderers who after their cowardly misdeeds await humane
treatment on the part of their victims, or the victims who wish
to defend themselves according to the principle of an eye for an
eye, a tooth for a tooth? This question is not hard to answer.
In any case it would be demanding too much of us if we were
asked to use German soldiers for the defense of murderers of chil-
dren, and against parents who, seized with blind rage at having
just lost their most valuable treasures through the brutal cynicism
of the enemy, take measures of self-defense. If the English and
Americans, as they themselves say, wish to regard and treat us
as troublesome native tribes, then it is our business whether we
put up with it. The German people are known over the whole
world for giving to war what war demands from them. But too
much is too much, and here the limits of what can be borne
have been far overstepped.

It seems to us hardly possible or endurable to use German
police and soldiers against the German people when they treat
murderers of children as they deserve. Even the arbitrary
methods of warfare of the Anglo-Americans must have an end
somewhere. The pilots cannot say that they as soldiers acted
upon orders. It is not provided in any military law that a soldier
in the case of a despicable crime is exempt from punishment
because he blames his superior, especially if the orders of the
latter are in evident contradiction to all human morality and
every international usage of warfare. Our century has oblit-
erated to a great extent the boundaries between warfare and
crime on the part of the enemy. It would be demanding too much
of us, however, to expect that we should silently accommodate
ourselves as victims to this unlimited barbarity.

We reach these conclusions in a completely objective manner.
In these questions our people think much more radically than
their government. It has always been our wish that the war
should be conducted in a chivalrous manner. The enemy, ap-
parently, does not want this. The whole world is a witness of

168

that. If this revolting condition continues, it will also be witness
of the fact that we can find ways and means to defend ourselves
against these criminals. We owe this to our people who bravely
defend their lives in a proper manner, and therefore in no way
deserve to be declared fair game for enemy man-hunters.

TRANSLATION OF DOCUMENT 735-PS
PROSECUTION EXHIBIT 346

MINUTES OF MEETING, 6 JUNE 1944, CONCERNING TREATMENT OF
ENEMY FLYERS, SIGNED BY WARLIMONT

[Stamp]

Matter for Chiefs
Through Officer only

Fuehrer Headquarters, 6 June 1944
Deputy Chief of the Armed Forces Operations Staff
No. 771793/44, Top Secret, Matter for Chiefs

[Stamp] Top Secret

3 copies — 1st Copy

Subject: Treatment of enemy terror flyers
Minutes of a Meeting

1. SS Lieutenant General Kaltenbrunner* informed the Deputy
Chief of the Armed Forces Operations Staff in Klessheim on the
afternoon of 6 June, that a conference on this question had been
held shortly before between the Reich Marshal, the Reich Foreign
Minister and the Reich Leader SS. Contrary to the original sug-
gestion made by the Reich Foreign Minister who wished to include
every type of terror attack on the German civilian population, that
is, also bombing attacks on cities, it was agreed in the above con-
ference that only strafing attacks, aimed directly at the civilian
population and their property, should be taken as the standard for
the evidence of a criminal action in this sense.

Lynch law would have to be the rule. On the other hand, there
would be no question of court-martial procedure or handing over
to the police.

2. Deputy Chief of the Armed Forces Operations Staff stated
the following :

a. First and foremost, following the lines of the generally dis-

* Defendant before the International Military Tribunal, Trial of the Major War Criminals,
op. cit. supra, Vols. I-XLII.

169

tributed declaration made by Reich Minister Dr. Goebbels and
numerous press notices written in the same vein, it is essential
to announce any definitely established incident of this kind giving
the names and units of the airmen, the place the incident occurred
and any other relevant facts. The purpose of this would be to
make clear the serious intentions of the Germans in the face of
disbelieving enemy propaganda, and especially to discourage ef-
fectively any further murderous action against our civilian popu-
lation. Therefore, the question is whether the Security Service
knows of such a case, or whether the necessary proof is available
with which to construct a case like this with the required par-
ticulars.

SS Lieutenant General Kaltenbrunner replied to both in the
negative.

b. Deputy Chief of the Armed Forces Operations Staff men-
tioned that, apart from lynch law, a procedure must be worked
out for segregating those enemy airmen, who are suspected of
criminal action of this kind, when they are received into the re-
ception [PW] camp for airmen at Oberursel ; and if the suspicion
was confirmed, they should be handed over to the Security Service
for special treatment.

For this purpose the Armed Forces Operations Staff would co-
operate with the High Command of the Air Force to lay down the
necessary regulations for the use of the chief of the camp at
Oberursel.

SS Lieutenant General Kaltenbrunner expressed his complete
agreement with this view and that the Security Service should
take charge of the airmen thus segregated.

c. On the question of making announcements, it is settled that,
for the present, agreement should be reached in every case between
OKW/Armed Forces Operations Staff, High Command of the Air
Force, and the Reich Leader SS, to decide the form that the an-
nouncement should take. The participation of the Foreign Office
is to be assured by the Armed Forces Operations Staff.

3. At a conference with Colonel von Brauchitsch (Air Force
High Command) on 6 June, it was settled that the following
actions were to be regarded as terror actions, justifying lynch law :

a. Low level strafing attacks from aircraft on the civilian popu-
lation, individuals as well as crowds.

b. Firing at our own (German) shot-down air crews para-
chuting in the air.

c. Strafing attacks from aircraft on passenger trains in the
public service.

d. Strafing attacks from aircraft on military hospitals, civilian

170

hospitals, and hospital trains which are clearly marked with the
Red Cross.

The chief of the reception camp for airmen at Oberursel will be
informed of the facts given under paragraph 3, above. If the facts
of any case of this kind are established through examinations, the
prisoners are to be handed over to the Security Service. Colonel
von Brauchitsch declared in conclusion that another verbal report
to the Reich Marshal on this subject would be superfluous.

[Signed] Warlimont

Distribution :

Chief OKW via Chief Armed Forces Operations Staff, 1st copy

Deputy Chief Armed Forces Operations Staff/War Diary, 2d
copy

Quartiermeister (draft), 3d copy

Remarks* by the Chief of OKW on the minutes dated 6 June
1944 No. 771793/44 Top Secret, Matter for Chiefs

If one allows the people to carry out lynch law, it is difficult to
enforce rules.

[Initial] K [Keitel]

Min. Dir. Berndt got out and then shot the enemy flyers on the
road!

[Initial] K [Keitel]

I am against legal procedure ! It doesn’t work out !

Signed: K [Keitel]

Remarks by Chief of Armed Forces Operations Staff :

To 3. — This conference is insufficient. The following points
must be decided quite definitely in conjunction with the Foreign
Office:

1. What do we consider as murder?

Is RR in agreement with point 36?

[Handwritten] A. A.?

[Foreign Office]

2. How should the procedure be carried out?

a. By the people?

b. By the authorities?

3. How can we guarantee that the procedure is not also carried
out against other enemy flyers ?

4. Should some legal procedure be arranged or not?

Signed: J. [Jodi]

* These remarks by Keitel and Jodi were originally handwritten. Cf. Warlimont’s testimony
above in this section.

893964—51 12

171

TRANSLATION OF DOCUMENT NOKW-009
PROSECUTION EXHIBIT 347

TWO LETTERS FROM OKW/ARMED FORCES OPERATIONS STAFF TO
COMMANDER IN CHIEF AIR FORCE, 14 JUNE 1944 AND 23 JUNE
1944, CONCERNING TREATMENT OF ENEMY "TERROR" FLYERS

[Stamp] Draft

High Command of the Armed Forces

No. 771793/44 Top Secret, Matter for Chiefs, II Supplement

Armed Forces Operations Staff/Quartiermeister
(Administration 1)

Fuehrer Headquarters, 14 June 1944
3 copies — 2d copy
[Stamp] Top Secret

[Stamp]

Matter for Chiefs
Through officer only

Subject: Treatment of enemy terror flyers
To: Commander in Chief of the Air Force
Attention: Colonel v. Brauchitsch, GSC

1. On the basis of preliminary discussions and pursuant to an
agreement with the Reich Minister for Foreign Affairs and the
Chief of the Security Police and Security Service the following
are to be regarded as acts of terror when a case of lynching is
made public, and/or to justify the handing over of captured enemy
airmen from the receiving camp for airmen at Oberursel to the
Security Service for special treatment:*

(1) Strafing from aircraft of the civilian population, indi-
viduals as well as crowds.

(2) Firing at our own (German) shot-down air crews para-
chuting in the air.

(3) Strafing from aircraft on passenger trains in the public
service.

(4) Strafing from aircraft on military hospitals, civilian hos-
pitals, and hospital trains which are clearly marked with the
Red Cross.

It is requested that the assent of the Reich Marshal for the
precise wording of this matter be obtained, and that the comman-
dant of the receiving camp for airmen at Oberursel be instructed
verbally as to the appropriate procedure.

* All words in italic in this document represent handwritten corrections made on the original
document.

172

It is further requested that the assent of the Reich Marshal be
obtained also to the proposed procedure for the handling of public
announcements, as shown in the attached copy of a letter to the
Reich Minister for Foreign Affairs.

Written confirmation, if possible by the 20th of this month, is
requested.

The Chief of the High Command of the Armed Forces
1 Enclosure

Draft

High Command of the Armed Forces

No. 771793/44 Top Secret, Matter for Chiefs, 3d Supplement

Armed Forces Operations Staff/Quartiermeister
(Administration 1)

Fuehrer Headquarters, 23 June 1944

[Stamp] Top Secret

2 copies — 2d copy
[Stamp]

Matter for Chiefs
Through officer only

Subject: Treatment of enemy terror flyers

Reference: High Command of the Armed Forces/ Armed Forces
Operations Staff/Quartiermeister (Administration
1) No. 771793/44 Top Secret Matter for Chiefs II,
15 June 1944, and your letter Adjutant No. 1605/44
Top Secret, dated 19 June 1944

To : Commander in Chief of the Air Force
Attention : Colonel v. Brauchitsch, GSC

Unfortunately it is not clear from your letter whether the Reich
Marshal has given his assent to the facts as communicated, which
are to be regarded as an act of terror for the public announcement
of a case of lynching, and is willing to give verbal instructions to
the commandant of the receiving camp for airmen at Oberursel
as to the appropriate procedure.

It is again requested that the assent of the Reich Marshal be
obtained and that we are informed if possible by the 27th of this
month.

The Chief of the High Command of the Armed Forces

[Handwritten] By Order :
[Initial] W. [Warlimont]

24 June

173

TRANSLATION OF DOCUMENT 734-PS
PROSECUTION EXHIBIT 348

DRAFT OF LETTER FROM OKW/ARMED FORCES OPERATIONS STAFF
TO THE FOREIGN OFFICE, 14 JUNE 1944, CONCERNING TREATMENT
OF ENEMY "TERROR" FLYERS

[Stamp] Draft

The Chief of the High Command of the Armed Forces
Armed Forces Operations Staff /Quartiermeister
(Administration l)/No. 771793/44 Top Secret
Matter for Chiefs, II Supplement

Fuehrer Headquarters, 14 June 1944
[Stamp] Top Secret

3 copies — 2d copy
[Stamp]

Matter for Chiefs
Through officer only

Subject: Treatment of enemy terror flyers
To: Foreign Office [Initial] W [Warlimont]

Attention : Ambassador Ritter, Salzburg

In connection with the press reports at home and abroad, about
the treatment of terror flyers who fall into the hands of the popu-
lation, an unequivocal definition of the facts which characterize
a criminal action in this sense is called for. At the same time the
procedure has to be determined which should be adopted for the
publication of those cases which have led either to lynching by the
population, or — in the case of a terror flyer being picked up by
the armed forces or by the police — to special treatment by the
Security Service.

[Handwritten] This is not quite the point. W. [Warlimont]

But only for publication! W. [Warlimont]

In agreement with the High Command of the Air Force I intend
that the memorandum enclosed herewith in draft form should
serve a directive for the commandant of the reception camp for
airmen in Oberursel. It relates to those cases in which an investi-
gation conducted in this camp confirms a previous suspicion and
justifies the segregation of the culprits, and their transfer to the
Security Service.

Prior to publication of each case in the press, radio, etc., it must
be made certain that the name, the unit concerned, the place of the
act, and other related circumstances, give a picture that leaves no
doubt, the publication of which would achieve the desired deterrent

174

effect from future acts of murder. In the formulation of the
notice for publication it has to be borne in mind that protests of
every kind on the part of the enemy will have to be reckoned with.
Until further notice and before anything is published it is there-
fore intended, in agreement with the Chief of the Security Police
and the Security Service, and the High Command of the Air Force,
that an agreement should be reached between the High Command
of the Air Force, the Armed Forces Operations Staff, the Foreign
Office, and the Security Service to determine the facts, time, and
the form of the publication.

Kindly do your best to let me have your confirmation by the
18th instant that you are in agreement with the above formula-
tion, as well as with the procedure to be adopted for publication.

1 Enclosure

TRANSLATION OF DOCUMENT 728-PS
PROSECUTION EXHIBIT 1638

DRAFT OF LETTER FROM THE FOREIGN OFFICE TO CHIEF OKW,
20 JUNE 1944, CONCERNING TREATMENT OF ENEMY "TERROR"

FLYERS

[Stamp] Top Secret
[Handwritten] Draft

Salzburg, 20 June 1944

Ambassador Ritter, No. 444

To Chief of the High Command of the Armed Forces

Reference: Letter of 15 June 1944 No. Armed Forces Operations
Staff/Quartiermeister (Admin.) No. 771793/44
Top Secret, Matter for Chiefs, II Supplement, con-
cerning treatment of enemy Terror Flyers

In spite of the obvious objections founded on international law
and foreign politics, the Foreign Office is basically in agreement
with the proposed measures.

In the examination of the individual cases a distinction must be
made between the cases of lynching and the cases of special treat-
ment by the Security Service.

I. In the cases of lynch law the precise definition of the crimi-
nal acts, as given in numbers 1 to 4 of the letter of 15 June, is
not very important. First of all no German official agency is
directly concerned; death has already occurred before a German

175

official agency is concerned with the case. Furthermore the ac-
companying circumstances will, as a rule, be such that it will not
be difficult to present the case in an appropriate manner when it
is published. In the cases of lynch law it will therefore be mainly
a question of correctly dealing with the individual case when it
is published.

[Handwritten] That was the whole point of our letter. W. [Warlimont]

II. The proposed procedure for special treatment by the SD
with subsequent publication would be tenable only if Germany
took this opportunity to declare herself free from the obligations
imposed by the agreements of international law, which are valid
and still recognized by Germany. When an enemy airman has
been captured by the armed forces or by the police and has been
delivered to the air corps reception camp at Oberursel, he thereby
has already acquired the legal status of a prisoner of war. In the
Convention on Prisoners of War, of 27 July 1929, certain rules
have been laid down for the criminal prosecution and sentencing
of prisoners of war and for the execution of death sentences on
prisoners of war. For instance Article 66 provides that a death
sentence may be executed only three months after the protecting
power has been informed of the death sentence; Article 63, pro-
vides that a prisoner of war can be sentenced only by the same
courts and under the same procedure as members of the German
armed forces. These rules are so precise that any attempt to dis-
guise their violation by clever wording in the publication of an
individual case would be futile. On the other hand, the Foreign
Office is unable to recommend a formal repudiation of the Pris-
oners of War Convention on this occasion.

[Handwritten] Precisely this will be prevented by the proposed segregation.
W. [Warlimont]

[Handwritten] No, — through the segregation and immediately following spe-
cial treatment. W. [Warlimont]

An emergency solution would be to prevent suspected flyers
from ever attaining a legal prisoner of war status; that is, that
immediately upon seizure they be told that they are regarded not
as prisoners of war, but as criminals, and that they will be deliv-
ered not to the authorities competent for prisoners of war, i.e.,
not to a prisoner of war camp, but to the authorities competent
for the prosecution of criminal acts; and that they will then be
tried in special summary proceedings established ad hoc. If in-
terrogations during those proceedings should reveal circumstances
which show that this special procedure is not applicable to the
particular case, then the airmen concerned might in individual
cases be subsequently transferred to the legal status of prisoners
of war by being sent to the reception camp at Oberursel. Naturally

176

even this expedient would not prevent Germany being accused
of violating existing treaties, nor would it necessarily be a safe-
guard against reprisal measures being taken against German
prisoners of war. But at least this expedient would make it pos-
sible to follow a clear line, thus relieving us of the necessity of
openly renouncing the present agreements, or, upon publication
of each individual case, using excuses which no one will believe.
[Handwritten] Yes, that is also possible. W. [Warlimont]

[Handwritten] Yes.

Of the acts deemed crimes listed under numbers 1 to 4 of the
letter of 15 June, those listed under 1 and 4 are legally unobjec-
tionable. Those under 2 and 3 are not legally unobjectionable.
The Foreign Office, however, would be willing to disregard this.
Perhaps it would be advisable to combine the acts under numbers
1, 3, and 4 to the effect that all shooting attacks by a flyer on the
civilian population will be dealt with as crimes. The various facts
under 1, 3, and 4 would then be significant only as especially out-
standing examples. The Foreign Office sees no reason why such
attacks should not be expiated when they are directed against the
civilian population in ordinary homes, in automobiles, on river
boats, etc.

[Handwritten] Yes. W. [Warlimont]

The Foreign Office bases its opinion on the fact that it is gener-
ally prohibited for German flyers to fire on the civilian population
during the raids on England. According to information received
by the Foreign Office an order to that effect was issued some time
ago by the Supreme Commander of the Air Force. In case of a
general publication the existence of such an order might be
pointed out.

III. It follows from the above that the main weight of the
action will have to be placed on lynchings. Should the campaign
be carried out to such an extent that the purpose, namely, the
deterrence of enemy flyers, is actually achieved, which purpose
is endorsed by the Foreign Office, then the shooting attacks by
enemy flyers on the civilian population must be exploited for
propaganda purposes in a more definite manner than heretofore;
if not for publicity at home, then certainly for propaganda directed
to foreign countries. The competent local German authorities
concerned, presumably the police authorities, would have to be
instructed to transmit to a central agency in Berlin a short truth-
ful report on each such attack giving details as to place, time and
number of dead and wounded. This central agency would have to
forward this report at once to the Foreign Office for exploitation.
[Handwritten] Yes.

177

Since such shooting attacks on the civilian population have taken
place also in other countries, for instance, in France, Belgium,
Croatia, and Rumania, the competent German authorities or gov-
ernments in those countries would have to be instructed to collect
such instances of attacks on the civilian population in the same
manner and to exploit them for propaganda for foreign countries
in collaboration with the German authorities.

[Handwritten] Yes.

IV. In the letter of 15 June, the intention was communicated
that until further notice an understanding with, among others, the
Foreign Office is to be reached prior to any publications. The
Foreign Office attaches particular importance to this point and also
to the further point that this understanding should be reached not
only until further notice, but for the entire duration of the
campaign.

BY ORDER:

Signed: Ritter [Crossed out]

TRANSLATION OF DOCUMENT NOKW-548
PROSECUTION EXHIBIT 355

EXTRACT FROM WAR DIARY OF OPERATIONS STAFF Ic FOREIGN
AIR FORCES WEST, 2 OCTOBER 1944, CONCERNING CONDUCT OF
SOLDIERS IN CASES OF LYNCHINGS OF ALLIED AIRMEN BY THE

POPULATION

Headquarters, 2 October 1944

Air Force Operations Staff Ic
Foreign Air Forces West

[Handwritten] War Diary
File Note

Subject: Conduct of soldiers in cases of lynching by the popula-
tion of shot-down terror flyers

On 2 October, 0920 [hours] , Lieutenant Colonel Hohl telephoned
to communicate the following decision of the Reich Marshal which
was transmitted to him over the telephone by Major Breuer of the
adjutant’s office of the Reich Marshal.

The Reich Marshal agrees that the order OKW/Armed Forces
Operations Staff/Quartiermeister (Admin. 1) No. 05119/44,*

* The file reference number identifying this order (No. 05119/44) differs from the file refer-
ence number (NO. 01 119/44) in the exhibit reproducing the order itself (NOKW-3060, Pros.
Ex. 1462, which appears immediately below). The prosecution took the position that this was
merely a typographical error. It will be noted that the other parts of file reference and the
date are the same.

178

Secret, of 9 July 1944, concerning the conduct of soldiers in cases
of lynching by the population of shot-down terror flyers, may be
issued within the air force as an order of the High Command of
the Armed Forces, but not as an order of the Air Force High
Command.

[Signed] Maulbehre

First Lieutenant

TRANSLATION OF DOCUMENT NOKW-3060
PROSECUTION EXHIBIT 1462

ORDER BY GENERAL SCHMIDT, II DECEMBER 1944, TRANSMITTING
ORDER OF CHIEF OKW OF 9 JULY 1944, CONCERNING ORAL IN-
STRUCTIONS TO BE GIVEN TO SOLDIERS NOT TO PROTECT ENEMY
"TERROR" FLYERS FROM THE GERMAN POPULACE

Copy of Copy

Air Force Administrative Command VI
Operations Section la
No. 12 857/44 secret

Headquarters, 11 December 1944

Reference : Teletype Air Fleet Command Reich, Chief of General
Staff No. 013082/44 secret, dated 30 November
1944

Subject: Conduct of soldiers in cases where the civilian popu-

lation takes matters in its own hands with regard
to shot-down terror flyers

To the —

Divisional Commanders,

Commanders of airport areas,

The Commander of the Antiaircraft Group Kurhessen
The Luftgau Forces and Antiaircraft Regiment 112/ (E)

1. The Chief OKW has issued order, OKW/ Armed Forces Oper-
ational Staff /Quartiermeister (Admin. 1) No. 01 119/44 secret,
dated 9 July 1944 — concerning the conduct of soldiers in cases
where the civilian population takes matters into its own hands
[Selbsthilfe-“self-aid”] with regard to shot-down terror flyers.
“Recently, it has happened that soldiers have actively pro-
tected Anglo-American terror flyers from the civilian popula-
tion, thus causing justified resentment. You will take imme-
diate steps to ensure by oral instruction of all subordinate units

179

and authorities that soldiers do not oppose the civilian popula-
tion in such cases by demanding that the enemy flyers be handed
over to them as prisoners, and by protecting, and thus ostensibly
siding with, the enemy terror flyers.

“No fellow German can understand such an attitude on the
part of our armed forces. The inhabitants of the occupied ter-
ritories, too, must not be restrained from taking matters into
their own hands because of their justified indignation against
the Anglo-American terror flyers, or from giving other expres-
sions of their justified resentment against captured members of
the enemy forces. In addition, I refer to the article by Reich
Minister Dr. Goebbels published in the Voelkischer Beobachter,
Berlin edition, dated 27 May 1944, No. 148, and entitled: ‘A
Word on the Enemy Air Terror’.”

2. This order and all pursuant official correspondence will be
destroyed after having been brought to the cognizance of the
divisional commanders, the commanders of the airport areas, the
commander of the Antiaircraft Group Kurhessen, of the Luftgau
Forces and of the Antiaircraft Regiment 112 (E). Completion
will be reported to Air Force Administrative Command VI, Opera-
tions Section la.

3. Instructions concerning this order will be given to all levels
down to the regimental commanders and airfield commanders ; as
far as is practicable in the local conditions this will be done orally,
otherwise by personal letter.

The order will not be transmitted in writing to subordinate units
from battalions downward. The troops will be instructed orally
in an appropriate way.

The Commanding General

Signed: Schmidt

Lieutenant General, Antiaircraft Artillery

Cologne, 16 December 1944

Command Airfield Area 4/ VI (Cologne)
la Diary No. 2051/44 secret

Personal

To the Commander of Air Base Wahn.

1. The directive contained on the other side will, in accordance
with the order, be made known to the units orally in an appro-
priate way.

2. After notification, the directive will be destroyed in accord-
ance with Air Force Regulation 99.

180

3. The notification of the directive to the subordinate units and
the destruction of the directive will be reported to Command Air-
field Area 4/VI (Cologne), section la, by 21 December 1944.

For the Commander op the Airfield Area

As Deputy
Signed Signature

Major

Certified true copy:

Sergeant

COPY OF DOCUMENT 2557-PS
PROSECUTION EXHIBIT 360

SWORN STATEMENT OF MAJOR THOMAS R. SEALY, 2 NOVEMBER
1945, CONCERNING ILL-TREATMENT AND KILLING OF AMERICAN
AIRMEN BY GERMAN CIVILIANS

Deputy Theater Judge Advocate’s Office
War Crimes Branch
United States Forces, European Theater

APO 633

Before me, the undersigned authority, on this day personally
appeared THOMAS R. SEALY, Major, AC, Executive Officer of
the Trial Section, War Crimes Branch, United States Forces,
European Theater, who being by me duly sworn upon his oath
deposed and said:

From my familiarity with the records of the War Crimes
Branch and in my official capacity as executive officer of the Trial
Section of that branch, I know that the War Crimes Branch has
referred for trial by a Military Commission or a Military Govern-
ment Court in either the Eastern Military District or the Western
Military District of the American Zone of Occupation in Germany,
33 cases involving 84 accused, virtually all of whom are German
civilians charged with killing or beating American airmen who
were surrendered unarmed prisoners of war in the custody of the
then German Reich, at least 70 percent of such offenses being
murder as distinguished from beating.

Sixteen of these cases involving 44 accused have been tried,
and 17 cases involving 40 accused are now awaiting trial.

In addition 33 cases involving substantially the same offenses
in like proportions are now ready for trial and will be tried as
soon as one or more of the perpetrators involved in the cases can
be apprehended.

181

A study of these cases discloses that the incidents involved
therein were not limited to any one section or geographical locality
of Germany, but occurred generally throughout all Germany.

[Signed] Thomas R. Sealy
Major, AC

Subscribed and sworn to before me this 2d day of November
1945.

[Signed] Ardell M. Young
Lt. Colonel, JAGD

EXTRACTS FROM THE TESTIMONY OF DEFENDANT WARLIMONT*

DIRECT EXAMINATION

* * * * % * *

Dr. Leverkuehn (counsel for the defendant Warlimont) : I
shall now turn to a new topic, the so-called “Terror Flyers”. * * *
Now, before making any comments, would you please explain what
the term “Terror Flieger” denoted in German?

Defendant Warlimont: I heard this term for the first time
during the situation conferences held at Hitler’s Headquarters,
some time before 22 May [1944] which is the date of the first
telegram. The term was applied for enemy airmen who, with
their guns, shot at the German civilian population completely out-
side any combat area and quite apart from any combat action.
As far as I could gather from these situation conferences, they
were fighters who had escorted bombers to Germany or who were
flying by themselves over Germany. At any rate, they penetrated
into central Germany, and when they had discharged the duty
allotted to them, and a new wave of fighters had taken over the
escort of the bombers, then these enemy fighter planes swooped
down on any Germans they encountered anywhere in Germany.
They fired on peasants in the field, and persons in motor cars.
They fired on railroad trains which could be identified as passen-
ger trains beyond any doubt. They shot at persons who were
descending from the trains to seek cover when the trains were
forced to stop. They shot at children who were playing, and they
fired — and this is the most drastic case which I recall — on a
funeral procession. These questions were discussed again and
again in the situation conferences and Hitler demanded of the
representatives of the German Air Force that they should seek a
remedy against this terror. At about the time the first document

* Complete testimony is recorded in mimeographed transcript, 21-25, 28-30 June; 1-2 July,
1948, pp. 6312-7103.

182

originated, the matter had reached such a pitch that Hitler asked
the air force representatives for reports about the daily number
of casualties caused in this way. I recall that figures of 20-80
persons a day were given as the casualty figures. That was the
reason which had led to these orders.

* * * * * * *

Q. I will now put to you Document 735-PS, Prosecution Ex-
hibit 346.*

A. This again is a note for a report, that is, a communication
which was to be submitted to the superior officers in place of an
oral report. This note was drafted by me and I directed it to
Keitel via Jodi, as is stated in the distribution list. It refers to
the treatment of enemy terror flyers.

In the first part, paragraphs 1 and 2, I reproduced the gist of
a conversation which I had had with SS Lieutenant General
Kaltenbrunner, regarding this question, on the same morning or
the same afternoon. It was the day after invasion of France, that
is the Allied landing in France, and on this day Hitler received
the Hungarian Prime Minister. The military situation confer-
ence therefore took place in the Castle of Klessheim near Salzburg,
which I have mentioned before. I had been ordered to Klessheim
for that purpose, and on this occasion I saw Kaltenbrunner whom
I had never talked to and whom I did not personally know until
that date. This opportunity seemed expedient, as discussions had
to be had with the police in this question, to discuss this matter
personally with Kaltenbrunner. I asked Kaltenbrunner what the
police knew of all these orders of Hitler, and whether any orders
had been issued by the police in this field. Kaltenbrunner told me
that, shortly before, a conference had taken place between Goering,
Ribbentrop, and Himmler concerning this matter, and all three of
them had agreed that only the kind of shooting attacks from air-
craft which I previously described were to be considered criminal
offenses. I went on to ask Kaltenbrunner what measures were to
be taken on such occasions. Thereupon he told me, and this may
be seen in the second paragraph, that lynch law was to be applied
as a rule ; courts martial proceedings and turning over to the police
had not been referred to. That was diametrically opposed to what
I had heard from my superior officers. Therefore — and that is
contained in paragraph 2 — I pointed out that on the part of the
armed forces a different procedure had been suggested, the pro-
cedure which I have previously described.

I went on, in paragraph 26, to ask whether cases — I beg your
pardon, it is in paragraph 2 a — whether cases of this type had
become known to the Security Service and he said no.

* Document reproduced above in this section.

183

Finally, under paragraph 2c, it is mentioned that in any case
which might occur in this field, prior to any publication, contact
should be established between the authorities involved, that is,
the OKW, and the High Command of the Air Force, and Himm-
ler’s office. That was the substance of this interview between
Kaltenbrunner and myself which was not attended by anybody
else. We were standing talking in a corner of the room, and our
talk lasted for about five or six minutes.

Q. Then you go on to report about a conference with Colonel
von Brauchitsch.

A. Yes. On the same afternoon, after I had returned to my
office, Colonel von Brauchitsch called upon me as the representa-
tive of the Commander in Chief of the Air Force, and he made
some more specific suggestions as to what acts of enemy airmen
were to be considered as crimes. After that, these acts, as com-
pared with the original definition, were considerably restricted.
The point which Jodi had objected to in the first version was
dropped, and in its place only shooting attacks from aircraft by
enemy flyers on the civilian population, attacks on parachuting
shot-down German air crews, attacks on passenger trains, attacks
on hospitals and hospital trains, were described as being criminal.
In addition, along the lines which we had discussed before, it was
once again stated that all prisoners were to be removed from the
population’s so-called lynch justice, and that they were to be
turned over to the Oberursel camp for enemy airmen to be inter-
rogated, and as a result of such interrogation further measures
were to be taken. Thus, these were discussions in connection with
the execution of the missions which I had received from Jodi con-
cerning this matter.

Q. Now what were Jodi’s and Keitel’s comments on this?

A. The comments are evident from the handwritten notes which
both made on page 3 of the original.
*******

Q. I was just going to show you the next Document NOKW-
009, Prosecution Exhibit 347.*

A. This document contains two communications from the OKW
to the High Command of the Air Force. The first is dated 14
June, and the second is dated 23 June. Both are drafts. The first
communication tells the Commander in Chief of the Luftwaffe,
what the results were of the conferences held on the question of
terror flyers up to then. The four cases are particularly mentioned
which henceforward were to be the conditions for the treatment
of enemy flyers as terror flyers; and it discusses once again,
briefly, the further treatment of such terror flyers as described by

* Ibid.

184

me before. This communication therefore was issued eight days
after the discussion previously mentioned; it had been postponed
for so long. The photostat copy here is not signed, but I assume
that it was issued because the second part of this document appar-
ently refers to an answer which Goering had given in the mean-
time. This answer, however, is regarded as unsatisfactory and
therefore information is again requested. I signed this last com-
munication “by order”. This is another nine days after the
previously mentioned communication.

Q. Does the document reveal anything about your participation ?

A. I have already said that I signed the second communication
“by order”; and, there are handwritten alterations by me on
the first one.

Q. And what do they show?

A. In these alterations I tried to express with great clarity that
the armed forces had nothing to do with lynch law and could have
nothing to do with it, and that there could be no case at all which
would justify lynch law.

Q. In this connection we will offer an affidavit as Warlimont
Document 46, [Warlimont Defense Exhibit 48]

Now, I will show you Document 734-PS, Prosecution Exhibit
348. 1 2

A. This again is a draft with no signature. The draft contains
some general ideas for a communication to be sent to the Foreign
Office ; and, here, too, it is in pursuance to the directive which Jodi
had given at the beginning of the whole development. In the con-
tents the Foreign Office is told what intentions the OKW had for
the treatment of further cases of terror flyers.

Q. Are there any comments in your own handwriting which
reveal anything about your own attitude?

A. Yes. I sent the first draft of this communication once again
to the Quartiermeister division in order, here again, to express
quite clearly that the OKW was only interested in the publication
of cases of this kind if lynch law should take place anywhere.

* * * * * * *

Q. I will now show you Document NOKW-548, Prosecution
Exhibit 355. 3

A. This is a file note belonging to the Air Force Operations
Staff, dated 2 October 1944. That is a period in which I had
already left office for more than a month. According to this file
note, a certain 1st Lieutenant Maul [Maulbehre], unknown to me,
called up another office of the air force, and told them about a

1 Document reproduced below in this section.

2 Document reproduced above in this section.

3 Ibid. Testimony is in contradiction to document to extent that Lieutenant Maulbehre was
receiver of call, rather than the originator.

185

decision of Goering’s. He said that this decision had been given
to him by telephone by an adjutant of Goering’s. The purport of
this message was that which is contained in a second paragraph
of this note. Goering here refers to an alleged order of the OKW,
dated 9 July 1944, and he states that he was in agreement with
this order of the OKW being issued within the air force as an
order of the OKW but not as an order of the Air Force High
Command. The contents of this order is designated as, “The con-
duct of soldiers in cases where the population takes matters into
its own hands with regard to shot-down terror flyers.” This is a
paraphrase of the term “lynch law” previously used.

Judge Harding: I have a question for you. This order that
was issued on 9 July, that was issued apparently by the Quarter-
master section, Administration 1. Was that section under you at
that time?

Defendant Warlimont : Yes. Your Honor.

Q. Are you familiar with that order?

A. No, Your Honor, not at all. I was just going to add that.

Dr. Leverkuehn : Might I refer to this order? It’s the next
document. Witness, would you please wait with your answer until
I have submitted this document. It is NOKW-3060, Prosecution
Exhibit 1462. 1

Defendant Warlimont : This is a copy of a copy, as it states
at the top, and again it is an event which took place within the
air force. But the first paragraph of this document mentions the
order of 9 July again, and it gives the text of the order. It starts
with the words “Recently, it has happened” and finishes on page 1
of the original with an allusion to the article written by Goebbels
in the Voelkischer Beobachter.

Q. I would like to ask you, did you know this article by Goebbels
which is mentioned here? ( 1676-PS , Pros. Ex. 3U1.) 2

A. I never read the Voelkischer Beobachter. It never came to
my house or to my office; but it is not quite out of the question
that this article was officially shown to me at that time by some-
body, but I can’t remember it.

Q. According to your recollection, was such an order from the
Chief of the OKW ever worked on in your division?

A. No. But I do know that Hitler repeatedly talked about it.
If I am not mistaken it was even the basis for the whole matter
even before May 1944. At that time another Party agency re-
ported to him that members of the armed forces had intervened
against members of the German population who had seized, or
wanted to seize, an enemy flyer who had been shot down. Hitler

1 Document reproduced above in this section.

2 Ibid.

186

brought this case up during the situation conference and re-
proached Keitel for such a thing being possible. He said it was
typical of the training of the armed forces. But at that time, and
even later on too, Keitel, as far as I know, drew no conclusions
from it.

Q. Assuming that such an order was issued, to whom was it
addressed?

A. It could only have been addressed to the Replacement Army
because it had to do with incidents within Germany itself. If one
wanted to keep soldiers from intervening in such cases on behalf
of the enemy flyers, it could only apply to soldiers of the Replace-
ment Army.

Q. Were matters concerning the Replacement Army dealt with
in your division?

A. No.

Q. To whom was the Replacement Army subordinate?

A. The Replacement Army was subordinate directly to Hitler
after Field Marshal von Brauchitsch had resigned. The questions,
however, were generally handled by Hitler via Keitel. Hitler had
a poor opinion of the Commander of the Replacement Army, Gen-
eral Fromm.

Q. If Keitel dealt with such a matter, the matter of the Replace-
ment Army, did he call in your division?

A. No. I can’t remember such a case, and particularly here,
where a disciplinary matter is concerned, which didn’t belong at
all to the sphere of the Armed Forces Operations Staff.

Q. Well, how does it happen that in the reference number your
division is mentioned?

A. Such cases always arose because this staff was the only mili-
tary staff which was present at all, at headquarters. As a result,
Keitel issued all his orders from there via this staff, and it is
possible that he did that in this case in the same way.

Q. Were you at the headquarters on 9 July 1944, the date of
this order?

A. Most probably not, because of the following reason: The
meeting discussed here with Reich Minister Lammers, about the
allocation of labor, took place on 11 July, and I have calculated
that that was on a Tuesday. The previous day, in the early
morning, I had already flown to Berlin, that was at 10 o’clock.
At that time, one could only fly in the early hours of the morning
in Germany as an air passenger. Now my house was on the way
from Berchtesgaden — where the headquarters was at that time —
to Munich. Consequently I am almost 99 percent certain that
I went home for the weekend, that is, I went home on 8 July in
the evening so that I could spend Sunday, the 9th at home. But

893964—51 13

187

I haven’t got any notes about it, and I can only explain it to
myself that I didn’t even know anything at all about the existence
of this order.

Judge Harding : 1 have another question here, if I may inter-
rupt. Do you know where the files of this office were kept?

Dependant Warlimont: The files were generally kept tem-
porarily at the office working on them, and then after a few weeks
they were handed over to some archives. But I am not quite
sure about that; I never troubled myself about it.

Q. You mean that within 2 weeks after an order of this kind, it
would be sent to the archives?

A. Not 2 weeks, but a few weeks, because we had very limited
accommodation at the time.

Q. In a matter of this kind, it wasn’t closed? Do you contend
that those files would have been sent from that office to the
archives within a period of a few weeks?

A. Yes. That is how it was generally done.

Q. Well, then, how did you keep up to date on these matters?

A. Well, they were entered in a register, as far as they were
secret, with the date, the contents, the sender, and the distribu-
tion list, etc.

Q. Now this register, that they were entered into, what was
the nature of that? Did that show what had been done with a
matter of this kind?

A. I never saw such a register, Your Honor, but I assume that
in the last column they entered: “sent on such and such a date
to such and such an office”.

Q. When you were in your office, didn’t you check back on a
matter of this importance, or check back on those matters to see
what had been done in these offices over which you exercised
control — the section under you — to see what had been done, when
you came back from a trip, if you had been on a trip?

A. It was an order by me that all the most important things
should be submitted to me on my return; but during the period
1942-1943 this could no longer be done because the corre-
spondence had so increased. As a result, I altered the order to
the effect that the important matters should be orally reported to
me, but even that was not always possible. That is particularly
the case here. After the discussion, on 11 or 12 July, I came
again to Berchtesgaden. Around about that time, the collapse
in the East had reached its climax with Army Group Center, and
the news reports poured in. For that reason, on 14 July — that is
two days later — Hitler decided to go back to the headquarters,
in East Prussia. That may be a further reason why I didn’t
hear about these things at that time.

188

Dr. Leverkuehn : Does the wording of this order correspond
to the wording which you had ordered to be used among your
staff?

Dependant Warlimont: I have checked the order on these
lines too, and I think I can state in this respect too that there
is proof that I did not see the order. I was always particularly
feared by my staff because I rejected certain German terms, and
always struck them out and sent them back. For instance, the
sentence which is down here, in the second line “Beschleunigt
Sicherzustellen” (to take “immediate steps to ensure”) — the word
“beschleunigt” as well as the word “sicherzustellen” were words
which I always removed from the wording used by the staff
in orders. There is another expression here which strikes me.
It is at the end of the fourth line from the bottom in the second
paragraph. It states, “by demanding that the enemy flyers be
handed over to them as prisoners”. That is in such bad German
that I certainly could not have read it. Then we come to two
more rather important objections. The term “Volksgenosse”
[fellow German] which is contained on the top of the second
paragraph was a typical Party expression and was never used
by me in an order. In the same way it seems to me to be com-
pletely contrary to military correspondence as a whole to refer in
an order to an article by Goebbels in the Voelkischer Beobachter,
as is stated here in the conclusion.
*******
CROSS EXAMINATION

*******

Mr. Rapp: Now, Witness, furthermore during direct examina-
tion you stated you could not recall ever having read or seen
Goebbels’ article in the “Voelkischer Beobachter” ( 1676-PS , Pros.
Ex. 341)* dealing with terror flyers; that is correct, is it not?
That is what you said according to the record.

Defendant Warlimont: I heard about it, but I cannot recall
whether I read about it in the documents.

Q. Now, look at paragraph 2a of Document 735-PS, Prosecu-
tion Exhibit 346, and I quote, “First and foremost, following
the lines of the generally distributed declaration made by Reich
Minister Dr. Goebbels and numerous press notices written in
the same vein, it is essential to announce any definitely established
incident of this kind, giving the names and units of the airmen,
the place the incident occurred, and any other relevant facts.”

Now this doesn’t indicate that you hadn’t read or heard of
Goebbels’ article at that time quite in detail.

* Ibid.

189

A. No. I had not. All it shows is that the general announce-
ment of Reich Minister Goebbels played a certain part in this
matter. I don’t say that I had read this declaration.

Q. Maybe if I refresh your memory, you will be able to then
tell us whether you read it or not. Let us look at Document
1676— PS, Prosecution Exhibit 341. Now to refresh your mem-
ory, Witness, as to the details of Goebbels’ article, it was stated
therein, “No one will be astonished at the fact that the population
concerned which, as is known to the whole world, can under-
stand any soldierly type of warfare has been seized with a
terrible rage on account of these cynical crimes. It is only pos-
sible with the aid of arms to secure the lives of enemy pilots who
were shot down during such attacks, for they would otherwise
be killed by the sorely tried population.” And then the last
paragraph, “It seems to us hardly possible and tolerable to use
German police and soldiers against the German people when it
treats murderers of children as they deserve. Even the arbitrary
methods of warfare of the Anglo-Americans must end some-
where. The pilots cannot say that they as soldiers acted upon
orders. It is not provided in any military law that a soldier in
the case of a despicable crime is exempt from punishment because
he passed the responsibility to his superiors, especially if the
orders of the latter are in evident contradiction to all humane
morality and every international usage of warfare. Our century
has obliterated to a great extent the boundaries between warfare
and crime on the part of the enemy. It would be demanding too
much of us to expect that we should silently accommodate our-
selves as victims to this unlimited barbarity.”

Now, Witness, you will agree with me, will you not, that this
was a rather plain incitement to murder Allied airmen?

A. Today I cannot pass judgment on an article which I didn’t
even read at the time according to my recollection. Even your
reading it does not refresh my memory.

Q. But you did make reference to it in this note to Jodi, and
you did discuss it with Kaltenbrunner, didn’t you?

A. It was known that such an article had been published.

Q. Now, may I ask you if you are in full accord with the
ideas enunciated by Dr. Goebbels?

A. Certainly not. Here again I endeavored, just as in the
case of the Commando Order, to reduce necessary reprisals to
such measures as appeared to me to be absolutely necessary.

Q. Well, I would like to ask you a personal question, Witness.
I assume you identify yourself today with Goebbels’ statements
that it is not provided in any military law that the soldier, in the

190

case of a despicable crime, is exempt from punishment because
he passes the responsibility to his superior.

A. I do not know whether Goebbels had the necessary legal
information as to international law in this sphere.

Q. That is a wrong answer to my question. I just asked
whether you agree with him, or whether you didn’t agree with
him?

A. If a soldier commits a crime, as was the case in this in-
stance, then in my view a reprisal is warranted. Whether that is
within the scope of what Goebbels wrote here, I cannot state at
this time. It was not assumed by us that these soldiers acted on
order of their superiors.

sfe sfc sfc

Q. Witness, on 20 June 1944, the reply from Ambassador Ritter
from the Foreign Office reached you. It is cross-examination Docu-
ment 728-PS, Prosecution Exhibit 1638.* I would like to discuss
that a little bit with you, Witness. Now in the introduction to
this letter Ritter stated, and I quote, “In spite of the obvious
objections founded on international law and foreign politics, the
Foreign Office is basically in agreement with the proposed meas-
ures. In the examination of the individual case a distinction must
be made between the cases of lynching and the cases of special
treatment by the Security Service.” And, under [paragraph] I
of that letter he discusses the cases of lynch law. Will you read
this paragraph I to the Court, please?

A. “In the cases of lynch law the sharp definition of the
criminal acts, as given in numbers 1 to 4 of the letter of 15 June,
is not very important. First of all, no German official agency
is directly responsible ; death has already occurred before a
German agency is concerned with the case. Furthermore, the
accompanying circumstances will, as a rule, be such that it
will not be difficult to present the case in a most suitable manner
when it is published. In the cases of lynch law it will there-
fore be mainly a question of correctly dealing with the individual
case when it is published.”

Q. Now, will you tell the Court your handwritten comments
on the left margin to this paragraph I?

A. “That was the whole point of our letter.” That is what I
wrote in the margin.

Q. Now, I would like you to read paragraph II which deals
with the proposed procedure for special treatment by the SD
[Security Service] and I would like you again to read the first
two sentences of paragraph II.

* Ibid.

191

A. “The proposed procedure for special treatment by the SD
with subsequent publication would be only tenable if Germany
took this opportunity to declare herself free from the obliga-
tions imposed by the agreements of international law, which
are valid and still recognized by Germany. When an enemy
airman has been captured by the armed forces or by the police
and has been delivered to the air corps reception camp at
Oberursel, he thereby has already acquired the legal status of
a prisoner of war.”

Q. And then you wrote again something on the left margin
of that document.

A. Yes.

Q. It says, “precisely” — what does it say?

A. “Precisely this will be prevented by the proposed segrega-
tion.”

Q. Will you continue now please reading.

A. “In the Convention on Prisoners of War of 27 July 1929,
certain rules have been laid down for the criminal prosecution
and sentencing of prisoners of war, and for the execution of
death sentences on prisoners of war. For instance Article 66
provides that a death sentence may be executed only 3 months
after the protecting power has been informed of the death
sentence; Article 63 provides that a prisoner of war can be
sentenced only by the same courts and in the same procedure
as members of the German armed forces. These rules are so
precise that any attempt to disguise an individual case of viola-
tion by a clever wording of publication would be hopeless.”

Q. What did you say to that on the left margin?

A. I wrote, “No, through the segregation and immediately
following special treatment.”

Q. Now, I put it to you, Witness, that in these two paragraphs
Ritter deals solely with a case of the turning over of Allied airmen
to the SD for special treatment.

A. Yes.

Q. And it is still the burden of your testimony, is it not, that
you did not know, did not ask, and were not told, what the real
true meaning of special treatment was, and that you believed it
was some special kind of confinement?

A. Not even that it was a special kind of confinement, but that
the special treatment consisted in the person not being treated as
a prisoner of war. He was treated differently — to wit, he was
put into prison.

Q. I submit to you, Witness, that Ritter does not mention any
other punishment to be carried out by the SD except death sen-

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192

tences, because his references to the conventions in this particular
paragraph deal with that particular issue?

A. He hadn’t been asked about it, nor did he know what was
meant or intended by this. This is evidenced from my first
marginal comment; and by these statements once again he en-
dangered this whole procedure which we had so painfully built up
with the air force, and he put matters back to lynch law, because
he didn’t know any better. That’s why I made my remarks to
the contrary in the margin; I believe that you can understand
it in this light.

Q. Now, Witness, if you had intended turning over prisoners
of war to the SD for confinement only, any argument as to how
to disguise an individual case of violation by clever wording for
publication would have been absolutely unnecessary, would it not ?

A. No. The impression was to be conveyed that these people,
on account of their terror action, had been punished by death.
Hence, this publication could only fulfill its purpose if it was in
accordance with this intention.

Q. Now, Witness, as I understand it, it is neither customary
nor provided for by international law that the detaining power
is required publicly to announce that a prisoner of war was
sentenced to a prison term; so that you would have no need to
worry about publications in such a case. Isn’t that correct?

A. The publication was to be of a quite different nature. It
was to convey the impression that this person had been killed,
so that the others would not follow his example, and to that end
it had to be worded properly.

*******

PARTIAL TRANSLATION OF DOCUMENT WARLIMONT 46
WARLIMONT DEFENSE EXHIBIT 48

AFFIDAVIT OF HERBERT BUECHS, 27 APRIL 1948

I, Herbert Buechs, was born on 20 November 1913, in Beuthen,
Upper Silesia and reside in Neustadt in the district of Marburg,
Camp Steimbel.

*******

My statements refer to my position as general staff officer of
the air force with the Chief of the Armed Forces Operations Staff
for the period of 1 November 1943, until 8 May 1945.

Beginning about May 1944, reports accumulated at head-
quarters telling of attacks contrary to international law, which

193

were increasingly carried out by enemy airmen with their aircraft
armament — machine guns and automatic cannons.
*******

These attacks at that time occurred above all within the western
area of Germany, partly, however, they also extended into central
Germany, at a time when no Allied front existed on the West
European continent.

The number of victims varied considerably. The highest num-
ber in a single case, in an attack on a local train which I remem-
ber, must have been between 15 and 20 dead.

The unlawfulness under international law of these almost daily
repeated attacks, even more than the considerable losses suffered
by the civilian population, was the cause for Hitler's order to
provide special countermeasures against these “terror flyers"
whenever they should fall into German hands. Then, beginning
May 1944, a voluminous exchange of letters between the various
authorities took place, also within the Armed Forces Operations
Staff, regarding this order, more and more pursuing the unmis-
takable purpose of putting off the matter until it would be
forgotten.

Indeed in the summer of 1944, Hitler temporarily forgot to
follow up his order through the armed forces, probably because
of the military situation on the invasion front, that early in June
completely occupied him, and later because of the events of
20 July. But even when new violations of international law by
Allied airmen led to the renewal of Hitler's demands for immedi-
ate attention to his order, it was possible again and again to
prevent the issuance of such an order on the part of OKW or the
air force.

Here I wish to refer particularly to the excited argument be-
tween the last Chief of the General Staff of the Air Force, General
Roller, and Hitler regarding these questions, that took place in
March or April 1945, and was recorded by Roller in an affidavit
before the International Military Tribunal. During this argu-
ment Hitler directly reproached the ORW and the air force
that their resistance against his order had sabotaged its promul-
gation and had contributed to the continuance of such unlawful
attacks.

Neustadt, 27 April 1948.

[Signed] Herbert Buechs

*******

194

D. The "Night and Fog" Decree and the Terror and
Sabotage Decrees

I. INTRODUCTION

Only the defendants Lehmann and Warlimont were specifically
named in the charges of the indictment concerning these decrees
(par. 81) . The “Justice Case” ( United States vs. Josef Altstoetter,
et al., Case No. 3) likewise contained charges of criminal con-
duct in the execution and implementation of the Night and Fog
Decree. See volume III of this series. The Night and Fog
Decree and the later decrees or regulations implementing it were
principally applied to inhabitants of France, the Low Countries,
and Norway.

Pursuant to article V of the Night and Fog Decree (Doc. 1733-
PS, Pros. Ex. 797), a first implementation decree was issued
on 12 December 1941. This implementation decree was intro-
duced in evidence, but it is not reproduced here, since it was
expressly revoked by the second implementation decree (Doc. 836-
PS, Pros. Ex. 804). Although the document concerning the sec-
ond implementation decree introduced in evidence and as repro-
duced here is marked “draft”, it contains the text which was
actually issued and used as a “working basis”. This was made
plain by the cross-examination of the defendant Lehmann (Tr.
pp. 8552-8554), the pertinent parts of which are hereinafter
reproduced.

The Night and Fog Decree, issued in December 1941, and the
later implementary decrees or regulations thereto, were super-
seded at least to some extent by the so-called Terror and Sabotage
Decrees issued in 1944. In this section the materials on the
Night and Fog Decree (section 2) are followed directly by the
materials on the Terror and Sabotage Decrees (section 3).

The closing statement for the defendant Lehmann, Section
IX E, and parts of the closing brief for the defendant Lehmann,
Section IX F 6, both contain argument concerning these charges.

195

2. THE "NIGHT AND FOG" DECREE

PARTIAL TRANSLATION OF DOCUMENT 1733-PS
PROSECUTION EXHIBIT 797

"NIGHT AND FOG" DECREE OF HITLER, SIGNED BY KEITEL, 7 DECEM-
BER 1941, CONCERNING MEASURES TO BE TAKEN AGAINST PERSONS
OFFERING RESISTANCE TO GERMAN OCCUPATION

Copy of Copy

[Stamp] SECRET

The Fuehrer and Supreme Commander of the Armed Forces

Directives for the Prosecution of Criminal Acts against the Reich
or the Occupying Power in the Occupied Territories,
dated 7 December 1941

Since the opening of the Russian campaign, Communist ele-
ments and other anti-German circles have increased their assaults
against the Reich and the occupation force in the occupied terri-
tories. The extent and the danger of these activities necessitate
the most severe measures against the malefactors in order to
intimidate them. To begin with, the following directives should
be observed:

I

In case of criminal acts committed by non-German civilians
and which are directed against the Reich or the occupation force,
endangering their safety or striking power, the death penalty
is indicated on principle.

II

Criminal acts contained in paragraph I will, on principle, only
be tried in the occupied territories when it appears probable that
death sentences will be passed on the offenders, or at least the
main offenders, and if the trial and the execution of the death
sentence can be carried out without delay. In other cases the
offenders, or at least the main offenders, are to be taken to
Germany.

III

Offenders who are taken to Germany, are only subject to court
martial procedure there if special military interests should require
this. German and foreign agencies are to be informed upon
inquiries about such offenders that they were arrested and the
state of the proceedings did not allow further information.

196

IV

The commanders in the occupied territories and the judicial
authorities, within their competency will be held personally
responsible for the execution of this regulation.

V

The Chief of the OKW will decide in which of the occupied
territories this decree shall be applied. He is authorized to
furnish explanations, and to issue supplements and implemen-
tation directives. The Reich Minister of Justice will issue imple-
mentation directives within his jurisdiction.

By order:

The Chief of the OKW

Signed: Keitel

Distribution

Foreign Office

Reich Minister and Chief of the Reich Chancellery

Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior

High Command Army (Chief Army Armament and Commander
of the Replacement Army, Army Legal Department) with
7 numbered copies

High Command Navy (Navy Legal Department) with 1 num-
bered copy

Reich Minister for Air and Commander in Chief of the Air
Force with 1 numbered copy

President of the Reich Military Court
Commander Armed Forces Southeast with 4 numbered copies
Norway
Netherlands
Ostland
Ukraine

Plenipotentiary for the Armed Forces with the Reich Protector
in Bohemia and Moravia

Armistice Commission Wiesbaden

High Command Armed Forces :

Chief Armed Forces Operations Staff
Dept. L with 8 numbered copies

Armed Forces Propaganda
Office Foreign Counterintelligence
Dept. Foreign Countries
Branch III

General Armed Forces Office

197

PARTIAL TRANSLATION OF DOCUMENT 669-PS
PROSECUTION EXHIBIT 798

KEITEL LETTER OF 12 DECEMBER 1941, TRANSMITTING THE FIRST
IMPLEMENTATION DECREE TO THE "NIGHT AND FOG" DECREE

[Stamp] Secret

12 December 1941

The Chief of the High Command of the Armed Forces
14 n 16 Armed Forces Legal Department (I 3/4)

No. 165/41 secret

Subject: Prosecution of criminal acts against the Reich or the
occupying power in the occupied territories

1 Enclosure*

It is the Fuehrer's long considered will, that while attacking the
Reich or the occupation force in the occupied territories, offenders
are to be treated with other measures than they have been before.
The Fuehrer is of this opinion. While committing such acts,
imprisonment, life imprisonment, too, are considered as signs
of weakness. An efficient and lasting intimidation can only be
obtained by death penalties or by measures keeping the relatives
and the population in uncertainty about the offender's fate. The
transfer to Germany serves this end.

The enclosed directives for the prosecution of criminal acts
are in accordance with this conception of the Fuehrer. They
have been examined and approved by him.

[Signed] Keitel

*******

* The enclosure was the first implementation decree of 12 December 1941. It is not repro-
duced herein since it was superseded shortly by the second implementation decree. Document
836-PS, Prosecution Exhibit 804, reproduced later in this section. The first implementation
decree is reproduced in the volume of this series concerned with the Justice Case (vol. Ill,
section V D 3), where it is designated as Document 669-PS, Prosecution Exhibit 305. Section
V D 3 of volume III contains considerable evidence concerning the execution of the “Night
and Fog" Decree which is not contained herein.

198

PARTIAL TRANSLATION OF DOCUMENT 671-PS
PROSECUTION EXHIBIT 799

LETTER FROM KEITEL TO REICH MINISTER OF JUSTICE, 12 DECEMBER
1941, TRANSMITTING "NIGHT AND FOG" DECREE

Chief of the High Command of the Armed Forces

14 n 16 Armed Forces Legal Dept. (13/4) no. 165/41 secret

Berlin W 35, 12 December 1941

Tirpitzufer 72-76
Telephone local: 218191
Long distance: 218091

[Stamp] Secret
To: Reich Minister of Justice

Attention: State Secretary Dr. Freisler

Subject: Prosecution of criminal acts against the Reich or the
occupying power in the occupied territories

3 Enclosures

With reference to the oral conversation between State Secre-
tary Dr. Freisler and the chief of my legal section, I enclose here-
with a decree of the Fuehrer and Supreme Commander of the
Armed Forces dated 7 December 1941, and an implementation
order of the same date. I agree with the opinion of the State
Secretary that the execution of the Fuehrer decree necessitates
a close cooperation between the Reich Ministry of Justice and
the High Command of the Armed Forces.

1 have instructed my officials to assist your agencies in every
respect. I ask you to settle the question regarding the manner
of imprisonment in your implementation order.

[Signed] Keitel

[Handwritten] Action taken by II a 118 and 119/42 secret

[Handwritten] II a 116/42 Secret — 3 enclosures

*******

199

PARTIAL TRANSLATION OF DOCUMENT NG-077/665-PS
PROSECUTION EXHIBIT 800

DRAFT OF IMPLEMENTATION ORDER FOR "NIGHT AND FOG"
DECREE WITH COVERING LETTER FROM REICH MINISTRY OF JUS-
TICE TO THE DEFENDANT LEHMANN, 16 DECEMBER 1941, REQUEST-
ING APPROVAL; AND HANDWRITTEN NOTE ON LEHMANN'S
APPROVAL, 24 DECEMBER 1941

Secret

Order for the implementation of the directives of the Fuehrer and
Commander in Chief dated 7 December 1941, for the Prosecution
of Criminal Acts against the Reich or the Occupying Power in
the Occupied Territories dated December 1941

Regarding the execution of the afore-mentioned order I decree :

1. I reserve to myself the decision on which court is materially
and locally competent to deal with a case.

2. The public prosecutor shall base his decision for an indict-
ment on his conception of duty.

3. The order for detention [Untersuchungshaft] , its implemen-
tation, and termination are at the discretion of the public prose-
cutor.

4. The main hearing will be conducted behind closed doors.

5. The admittance of evidence of foreign origin needs the
previous consent of the public prosecutor.

6. Prior to the verdict, the public prosecutor may revoke the
indictment, or move for a temporary stalling of the proceedings.
The motion of the public prosecutor to stall proceedings tem-
porarily must be granted by the court.

The public prosecutor must be given an opportunity to state
his opinion, should the court dissent [from the motion].

Priv. II
v. Ha/La

[Handwritten] Officially dispatched 16 December

[Handwritten] Secret
To Ministerialdirektor Dr. Lehmann

Chief of the Armed Forces Legal Department in the OKW

Berlin W, 16 December 1941

Bendlerstr. 14

Dear Herr Ministerialdirektor!

Dear Party Comrade Lehmann!

I have received your letter of the 12th instant and I am sending

200

you attached hereto the draft of an implementation directive. If
you consent to it, the Reich Minister of Justice intends to issue it.
I should be grateful if we could discuss it at the beginning of
next week. (Until then I shall be on an official trip.) In the
meantime, Ministerialdirektor Schaefer would also be pleased
to discuss this matter with you. Herr Ministerialdirektor
Schaefer will prepare the necessary administrative regulations on
the basis of the directives issued or proposed.

Heil Hitler
[Signed] Freisler

[Handwritten] 22.12. to Ila 116/42 secret

***

[Handwritten] Secret

[Handwritten] Note

I had a verbal discussion in this matter on 19 December, and
on 24 December, I had a discussion by telephone with Ministerial-
direktor Lehmann. He informed me that the OKW had agreed
in principle to the draft submitted to it concerning the imple-
mentation order, but that, nevertheless, [he] would reply in
writing. The question has not been decided whether the OKW
within its jurisdiction, will hand the cases over to the High
Military Court or to the military courts. There is also the
necessity of settling some other questions, which presumably
will be attempted in a conference of delegates at the beginning
of January. It would be advisable for the Reich Minister of
Justice to await further information from the OKW. Transfers
of the cases to the regular courts should not be expected before
the second half of January.

Specialists with the OKW are —

OKGR [Oberstkriegsgerichtsrat] Huelle
KGR Schulz
Ministerialrat Sack

Furthermore with the Counterintelligence Office Colonel Bent-
ivegni, Chief of Counterintelligence III —

Ministerialrat Herzlieb
OKGR von Gramatzki

*******

[Signed] Schaefer

24 December 1941

201

TRANSLATION OF DOCUMENT 836-PS
PROSECUTION EXHIBIT 804

DRAFT, UNDATED, BY ARMED FORCES LEGAL DEPARTMENT OF A
SECOND ORDER* FOR THE EXECUTION OF THE "NIGHT AND FOG"

DECREE

The Chief of the High Command of the Armed Forces
14 n 16.18 Armed Forces Legal Dept. (I 3/4)

No. 242/42 Secret

[Stamp] SECRET

Draft of a second decree for the execution of the directives of the
Fuehrer and Supreme Commander of the Armed Forces for the
Prosecution of Criminal Acts against the Reich or the Occupying
Power in the Occupied Territories

Based on article V of the directives dated 7 December 1941,
of the Fuehrer and Supreme Commander of the Armed Forces
for the prosecution of criminal acts against Germany or the
occupation force in the occupied territories I decree :

I. Directive Concerning Appropriate Punishment

1. In the occupied territories, for criminal acts committed by
non-German civilians against the Reich or the occupying force
and jeopardizing their safety or striking power, the death penalty
is indicated on principle.

2. These prerequisites as a rule will be found to be fulfilled in —

(1) Felonious assaults.

(2) Espionage.

(3) Sabotage.

(4) Offenses likely to cause unrest.

(5) Aiding and abetting the enemy by

a. Smuggling of persons.

b. Attempting to join the armed forces of an enemy.

c. Aiding enemy soldiers (parachutists, etc.).

d. Communist activities.

(6) Unauthorized possession of arms (on principle also the
possession of usable hunting arms).

II. Prerequisites for the Pronouncement of Judgment in the

Occupied Territories

1. Armed Forces Courts in the occupied territories will try
offenses in article I under the following conditions only:

* First implementation order not reproduced herein. See introduction above in this section.
202

(1) Special military interests must require judgment by an
armed forces court.

(2) It must be likely that death sentences will be pronounced
against the offenders, at least against the main offender.

(3) It must be possible to conduct the trial and to execute
the death sentences as speedily as possible (on principle within
one week after the judicial authority or his superior commander
has ordered the pronouncement of judgment in the occupied terri-
tories, Article III, sections 1 and 2).

(4) There must be no special political considerations against
the immediate execution of the death sentence.

III. Decision of Judicial Authority and the Superior Commander

1. In offenses outlined in article I, the [ military ] judicial
authority is to examine whether the prerequisites for a pro-
nouncement of judgment in the occupied territories exist. If so,
he orders it. If not, he is to submit the files to the superior com-
mander who would have to decide on disapproval of the sen-
tence. (Art. 89, Sect. 1, [German] Wartime Rules of Court
Martial Procedure). The latter may reserve to himself the right
of examination in accordance with section 1.

2. If the superior commander considers the prequisites for a
pronouncement of judgment in the occupied territories fulfilled,
he will order this and appoint one of the judicial authorities in
his sphere of command to take charge of it. If, in his opinion,
the prerequisites are not fulfilled, the offender is to be brought to
Germany.

3. If, due to insufficient police inquiries, the prerequisites for a
judgment in the occupied territories are not fulfilled, the judicial
authority and the superior commander may ask the police to
complete the investigations before they decide according to Sec-
tions 1 and 2.

IV. Judgment and Execution in the Occupied Territories

1. If a sentence pronounced in the occupied territories is dis-
approved, the proceedings may be continued, provided that the
provisions of Article II, sections 1, 2, and 4 are still applicable.
If the proceedings are to be discontinued and the offender is to
be brought to Germany, the charge is to be withdrawn.

2. Offenders who are lawfully sentenced to penal servitude by
Wehrmacht courts in the occupied territories in accordance with
article I are in future to be brought to Germany.

3. Women who are lawfully sentenced to death by armed forces
courts in occupied territories according to article I are on prin-
ciple to be brought to Germany, except in cases where the death
sentence was pronounced for murder or guerrilla activity. Other

893964—51 14

203

death sentences against women may be executed only in specially
justified exceptional cases, after the Fuehrer has been given the
opportunity to exercise his clemency prerogative.

V. Taking of Hostages

In the case of offenses outlined in article I the superior com-
mander may order, in suitable instances, that instead of being
transferred to Germany, the offender be detained, and/or be made
available as a hostage. As a rule, he is to do so only if the
offender has been lawfully sentenced to a prison term in ac-
cordance with article I. In exceptional cases he may order this
even when there is no basis for pronouncement of judgment in
the occupied territories.

VI. Transfer to Germany

Transfer to Germany is regulated by an OKW directive dated
2 February 1942, issued to the counterintelligence units. (Office
Foreign Counterintelligence, Section III No. 5707/1. 42 secret

ZR III C 2).

VII. Transfer to Civil Courts — Venue in Germany

1. Offenders taken to Germany are subject to court martial pro-
ceedings there only if the OKW or the superior commander in
their decision in accordance with article III have stated that
special military interests call for judgment by an armed forces
court. If such a statement is not made prior to shipment to
Germany, then the order to transfer the offender to Germany is
to be regarded as valid in the sense of Article 3, Section 2, sen-
tence 2, Wartime Rules of Court Martial Procedure.

2. Offenders subject to court martial in Germany (section 1)
or who are taken to Germany after having been sentenced (art.
IV, secs. 2 and 3) are to be designated, “prisoners of the armed
forces.”

3. The OKW determines the venue for offenders subject to
court martial in accordance with paragraph 1 [above]. It can
waive the competency of armed forces courts. Furthermore it
may suspend the proceedings until further notice.

VIII. Handling of Files

1. Files concerning “prisoners of the armed forces” (article
VII, section 2) are to be submitted through official channels to
the OKW.

2. Files concerning other offenders brought to Germany are
until further notice to be forwarded along with the offenders
themselves.

204

3. All files submitted to the superior commander prior to pro-
nouncement of judgment must contain a brief report and an
opinion as to whether judgment by armed forces court in Ger-
many is indicated. On submitting files to the OKW the superior
commander expresses his opinion on this question.

IX. Information concerning Offenders and the Proceedings —
Communication with the Outside World

1. All inquiries by civilians and Germans or foreign agencies
about offenders brought to Germany are to be answered: “The
offender has been arrested. No further information can be
given”.

2. All inquiries and information concerning “prisoners of the
armed forces” (Art. VII, sec. 2) must on principle be answered
in the sense of section 2 by the superior commander or by one
of the judicial authorities designated by him. Inquiries concern-
ing other offenders brought to Germany will be passed on, until
further notice, through the same channels as the offender.

3. Petitions for clemency on behalf of offenders brought to
Germany are to be passed on, until further notice, through the
same channels as the files concerning them. (Art. VIII, secs. 1
and 2.) In inquiries concerning petitions for clemency on behalf
of “prisoners of the armed forces”, the superior commander or
the judicial authority designated by him (sec. 2) answers the
petitioners: “The petition for clemency has been forwarded. No
further information can be given.”

4. Offenders brought to Germany are not allowed to have any
communication with the outside world; hence they are not per-
mitted to write, and may not receive letters, parcels, or visitors.
These are to be refused with the explanation that the offender is
forbidden to have any communication whatsoever with the outside
world.

5. Information with regard to offenders who were executed or
who have died must comply with sections 1 to 4.

X. Defense

The defense attorneys must not contact any German or foreign
agencies or persons with regard to offenders brought to Germany.
Investigations which they consider necessary must be requested
from the court.

XI. Trials in Germany

In view of the danger they constitute to the security of the
State, the public is to be strictly excluded from the trials con-

205

ducted in Germany. In the main trial, foreign witnesses may
only be heard with the approval of the OKW.

XII. Responsibility of the Commander and the Judicial

Authorities

The commanders in the occupied territories and the judicial
authorities are, within their competency, personally responsible
for the enforcement of this regulation.

XIII. Relation to other Decrees

1. Insofar as military court proceedings are concerned, these
directives and this implementation regulation hereby supersede
the decree of the Chief of the OKW of 13 September 1941, con-
cerning the situation in Norway (Armed Forces Operations Staff/
Dept. National Defense (IV/Qu) No. 002034/41 top secret) and
decree of 16 September 1941, concerning Communist resistance
movements in the occupied territories (Armed Forces Operations
Staff/Dept. National Defense (IV/Qu) No. 002060/41 top secret).

2. Article II of the decree of the Chief of the OKW dated 24
November 1941, (Ref. no. 2 f 1 e Beih, IV-No. 711/41 secret) con-
cerning the treatment of de Gaulle supporters becomes superfluous
due to the provisions of this regulation.

XIV. Territorial Applicability — Temporary Regulations

1. The directives of the Fuehrer and Supreme Commander of
the Armed Forces dated 7 December 1941, became effective as of
29 December 1941. Until further notice they are valid in Norway,
the Netherlands, Belgium, and in the occupied French territory.

2. Article I applies to trials in progress. The judicial authority
and the superior commander in such proceedings may apply article
III accordingly. Article VI ff. apply in the event that the superior
commander decrees the transfer of the offender to Germany. The
OKW may proceed according to Article VII, Section 3 in the case
of offenders brought to Germany prior to the date when these
directives became effective; it may decree that the provisions of
articles IX, X, and XI be applied.

XV. Summary of Provisions in Force Up to Now

To facilitate better understanding the directives of the Fuehrer
and Supreme Commander of the Armed Forces have been incor-
porated in this decree. The initial implementation regulation is
rescinded.

206

PARTIAL TRANSLATION OF DOCUMENT NOKW-2573
PROSECUTION EXHIBIT 806

REGULATION FROM ARMED FORCES LEGAL DEPARTMENT, 24 SEP-
TEMBER 1942, SIGNED BY DEFENDANT LEHMANN, CONCERNING
EXECUTION OF "NIGHT AND FOG" DECREE

Berlin, 24 September 1942
High Command of the Armed Forces
14 n 16.18 Armed Forces Legal Department (I 3/4)

No. 841/42 secret lid Supplement

Subject: Prosecution of criminal acts against the Reich or the
occupying power in the occupied territories

According to the point of view of the Chief of the OKW, death
sentences for men of 70 and over and fathers of many children
under age are as a rule to be carried out only if serious reasons
demand it. If, accordingly, the decision relative to the execution
is suspended, the perpetrator is to be brought to Germany and to
be kept in custody there ; section IX of the draft of the 2d imple-
mentation order (information about the perpetrators and the pro-
ceedings, contact with the outside) is to be applied. Reference
is made to section II of the OKW decree dated 27 August 1942,
(14 n 16.18 Armed Forces Legal Department I 3/4 No. 242 secret) .

These principles do not apply to death sentences for murder or
such crimes which are connected with combat activities such as,
for instance, guerrilla activity.

The Chief of the OKW

As Deputy

Signed: Dr. Lehmann

*******

207

TRANSLATION OF DOCUMENT 1932-PS
PROSECUTION EXHIBIT 811

DECREE FROM SS ECONOMIC AND ADMINISTRATIVE MAIN OFFICE
TO COMMANDERS OF CONCENTRATION CAMPS, 7 JUNE 1943,
CONCERNING "NIGHT AND FOG" PRISONERS

SS Economic and Administrative Main office*

Oranienburg, 7 June 1943

Office Group [division] D, Concentration Camps

D 1/1 File No. 14 c 2 / Ot / S. Secret Diary No. 743/43

Subject: Treatment of prisoners who fall under the Night and

Fog Decree

Reference: Reich Security Main Office IV c 2 General No. 103/42

Secret, 31 May 1943

Enclosures: None

[Stamp] Secret

To the Camp Commanders of the Concentration Camps Dachau,
Sachsenhausen, Buchenwald, Mauthausen, Flossenbuerg, Neuen-
gamme, Auschwitz, Gross-Rosen, Natzweiler, Stutthof, Ravens-
brueck, Hertogenbosch, Riga, Lublin, and the Civilian Camp
Bergen-Belsen.

I send the following decree of the Reich Security Main Office
regarding treatment of Night and Fog prisoners for your informa-
tion and strictest observation :

“The purpose of the Night and Fog Decree is the elimination
of all anti-German forces in the occupied territories and their
transport into the Reich.

“The relatives and the population are to be kept in uncertainty
about the fate of these persons. In order to achieve this, the
Night and Fog Decree further provides that prisoners of this
kind should be forbidden to write, to receive mail and parcels,
and to talk, and no information should be given about them. In
this regard it is irrelevant whether it is a question of a Night
and Fog prisoner of the old or new type. Night and Fog prison-
ers of the old type are those whom the military courts have
handed over to the transferring agencies for shipment to the
Reich, while the so-called new type Night and Fog prisoners
have to be taken directly to the arresting agencies of the

* A number of officials of the SS Economic and Administrative Main Office, including: its
chief SS General Pohl, were tried in the Pohl Case, United States vs. Oswald Pohl, et al.,
(Case No. 4), Vol. V, this series.

208

Security Police and the Security Service in the concentration
camps in the Reich without the participation of military courts.

“The agencies of the Security Police and the Security Service
in question are instructed to submit to the Reich Security Main
Office and to the concentration camp concerned, questionnaires
on all prisoners who fall under the Night and Fog Decree. This
questionnaire should contain detailed personal data, data on
racial origin, reason for arrest, former place of custody, and
other incriminating facts. These questionnaires are to be rub-
ber stamped ‘Night and Fog’.

“Upon the reports of the agencies of the Security Police and
the Security Service, a collective order for protective custody
will be issued here with the questionnaires attached, and the
agencies will be further instructed to transfer the prisoners to
a concentration camp.

“Insofar as Germanic Night and Fog prisoners are concerned,
they will be transferred from here exclusively to the concentra-
tion camp of Natzweiler; in all other cases the Night and Fog
prisoners will be shipped to a concentration camp depending on
the location of the transferring agency of the Security Police
and the Security Service, taking into consideration the classifi-
cation [type] and the capacity of the concentration camp.”

The camp commanders of concentration camps which already
contain Night and Fog prisoners, have to order immediately that
the prisoners should be screened according to racial points of view,
and that the Germanic Night and Fog prisoners should be trans-
ferred to the concentration camp of Natzweiler. Compliance with
this order is to be reported on individual questionnaires for each
prisoner. The camp commander of the concentration camp of
Natzweiler has to take care that the Night and Fog prisoners are
kept separate from the other prisoners.

In other respects reference is made to the directives of the Reich
Security Main Office Branch IV D 4 — which have been sent to-
gether with the secret letter No. 551/42, 18 August 1942.

Furthermore it is pointed out again, as has been ordered already
in the circular decree issued 2 February 1943, secret Diary No.
111/43, that death notices of Night and Fog prisoners are to be
submitted exclusively to the particular transferring agency of the
Security Police and the Security Service, to the Reich Security
Main Office and to this agency, in order to exclude divulgence of
the place of custody of a Night and Fog prisoner. Hereby the
decrees regulating the procedure in cases of death, particularly
any notification of the relatives, are canceled. The effects of de-
ceased Night and Fog prisoners are to be sent in their entirety

209

to the competent transferring agency, which will keep them in
custody until further notice.

The Chief of the Central Office

[Signed] Liebehenschel

SS Lt. Colonel

TRANSLATION OF DOCUMENT NOKW-2579
PROSECUTION EXHIBIT 815

COVERING LETTER, 10 NOVEMBER 1943, AND DIRECTIVE FROM
ARMED FORCES LEGAL DEPARTMENT, 6 NOVEMBER 1943, CONCERN-
ING TREATMENT OF "NIGHT AND FOG" PRISONERS

Copy

High Command Armed Forces

14 n 16.18 Armed Forces Legal Department (1/3)

129/43 secret

Berlin, 10 November 1943
Extension 2031

Subject: Prosecution of criminal acts against the Reich or the
occupying power in the occupied territories
Particulars — Ban on contact with the outside world

1 Enclosure

Enclosed a copy of the decree by the Chief of the OKW, dated
6 November 1943, is forwarded for your information and further
action.

Prisoners against whom proceedings have been dismissed or
who have served their sentence, are always transferred to the
mildest category of protective custody, category No. I.

By order:

The Chief of the OKW

Signed: Dr. Huelle

210

Berlin, 6 November 1943

High Command Armed Forces

14 n 16.18 Armed Forces Legal Dept. (1/3)

Secret

129/43 secret

Subject: Prosecution of criminal acts against the Reich or the
occupying power in the occupied territories
Particulars — Ban on contact with the outside world
Pursuant to section V of the Fuehrer’s Directives on the Prose-
cution of Criminal Acts against the Reich or the Occupation Force
in the Occupied Territories, dated 7 December 1941, the following
directives are issued on the treatment of perpetrators who are
not permitted contact with the outside world in Germany (see
article IX of the draft of a second implementation instruction,
serving as a basis for work, and the OKW decree, dated 27 August
1942, file No. 14 n 16.18 Armed Forces Legal Dept. 1/3/4
No. 242/42 secret).

I

If during armed forces court proceedings in Germany it is
found, prior to the trial, that a perpetrator is innocent or not
sufficiently under suspicion, he is to be turned over to the Gestapo ;
the latter will decide whether he can be released to the occupied
territories or whether he must remain in detention.

[Handwritten] not possible?

II

Perpetrators who were acquitted, or whose case was dismissed
by an armed forces court, or who served during the war their full
sentence passed by an armed forces court, are to be handed over
to the Gestapo to be detained for the duration of the war.

III

The OKW can deviate from paragraphs I and II. It also decides
about the treatment of perpetrators who for other reasons are to
be released from arrest while awaiting trial or from prisoners
while serving their term.

IV

The OKW decrees dated 22 June 1942, and 24 September 1942 —
File No. 14 n 16.18 Armed Forces Legal Dept. (1/3/4) No. 242/42
secret, are hereby rescinded.

The Chief of the OKW

Signed: Keitel

211

TRANSLATION OF DOCUMENT NOKW-2581 1
PROSECUTION EXHIBIT 819

LETTER FROM MINISTRY OF JUSTICE TO ARMED FORCES LEGAL
DEPARTMENT, 26 APRIL 1944, CONCERNING ASHES OF EXECUTED
"NIGHT AND FOG" PRISONERS

[Stamp] 02/360

1. Enter in a 3.

2. The Reich Minister of Justice IV a 173/44 secret

Berlin, 26 April 1944

Secret

[Stamp]

Dispatched 28 April 1944, [Illegible initial]

To : The OKW-Armed Forces Legal Department
Attention: Ministerialrat Dr. Huelle
Subject: Prosecution of criminal acts against the Reich or the
occupation force in the occupied territories
According to the regulations which I issued concerning the
handling of Night and Fog cases pending with the general judi-
cial authorities, the corpses of Night and Fog prisoners who were
executed or who died from other causes are to be handed over to
the Gestapo for burial.

The district attorney in Katowice has drawn attention to the
fact that the corpses of Night and Fog prisoners who were sen-
tenced to death by the special court in Oppeln and executed were
burned by the Gestapo. He expresses his doubts as to whether,
because of the large number of cremations performed in the dis-
trict of Katowice on account of the numerous deaths occurring in
Auschwitz concentration camp, 2 and on account of the numerous
executions of Polish members of bands, the separation of the ashes
of the individual dead is guaranteed.

If — according to your experiences — you consider it necessary to
ensure that the urns of convicted Night and Fog prisoners are
available in the future, I take the privilege of leaving it to you
to contact the Reich Leader SS and Chief of the German Police.

I should be grateful if I could be informed of any steps taken
by you.

By order :

[Stamp]

Secretary’s Office

April 1944

Entered by : [Initial] B, 27 April

1 Document consists of typed material with several handwritten corrections.

2 Auschwitz [Oswiecim] is situated in the district of Katowice.

212

3. To the District Attorney in Katowice
Subject: As in item 2

With reference to the conference with Judge Dr. Reichelt on
18 April 1944.

I contacted the OKW concerning the Gestapo’s procedure of
cremating deceased Night and Fog prisoners.

I reserve to myself the right to give additional information.

By order:

4. To Ministerialdirigent Dr. Mettgenberg
With request for comment.

5. After 1 month
[Stamp] 02/361

[Initial] M 26 April [Handwritten]

[Handwritten] IV a 257/44 secret
[Illegible initial] 25 April [Handwritten]

TRANSLATION OF DOCUMENT RF-388
PROSECUTION EXHIBIT 802

LETTER FROM ARMED FORCES LEGAL DEPARTMENT TO FOREIGN
OFFICE, 17 FEBRUARY 1942, SIGNED BY DEFENDANT LEHMANN,
CONCERNING BELGIAN "NIGHT AND FOG" PRISONERS

High Command of the Armed Forces

14 n 16.18 Armed Forces Legal Department (I 3/4)

82/42 Secret

Berlin W 35, 17 February 1942

[Stamp]

German Armistice Commission Group
We/lb Nr 27

Received: 21 February 1942

[Stamp] Secret

[Illegible initial] 21 February

[Stamp]

German Armistice Commission Wiesbaden, 20 February 1942
No. 676/16 Group We/lb 42 secret
To the Foreign Office

Berlin W8, Wilhelmstrasse 74/76

For information: Armistice Commission

213

Subject: Prosecution of criminal acts against the Reich or the

occupying power in the occupied territories

Reference: (1) letters of 9 and 31 January 1942 No. R 185 and
R 1169

(2) OKW of 31 January 1942, 14 n 16.18 Armed
Forces Legal Department (I 3/4) No. 2857/41 and
of 2 February 1942, 14 n 16 Armed Forces Legal
Department (I 3/4) No. 165/41 Secret

1 Enclosure

The High Command has pointed out in its reference letter dated
31 January 1942, that it is incompatible with the Fuehrer decree
of 7 December 1941 (announced in letter of Chief OKW dated
12 December 1941, File No. 14 n 16 Armed Forces Legal Depart-
ment (I 3/4) No. 165/41 Secret) that perpetrators brought to
Germany should be looked after by the Comite de Patronage, the
Belgian Red Cross, or by civilians. In reference letter dated

2 February 1942, the High Command informed the Foreign Office
of a directive to the armed forces prisons, which reads as follows :

“Perpetrators who have been brought to Germany in accord-
ance with the Fuehrer decree may not have any kind of inter-
course with the outside world; they may, therefore, neither
write nor receive letters, parcels, and visits. Letters, parcels,
or visitors are to be sent back with the information that it is
forbidden for the perpetrator to have any intercourse with the
outside world”.

The High Command shares that opinion in the letter dated
31 January 1942, that there is no question of procuring Belgian
defense counsel for Belgian prisoners.

The result of the trials may not be communicated to the rela-
tives of the perpetrators who have been brought to Germany.
According to a letter of the Chief of the OKW dated 12 December
1941, the main purpose of these transfers to Germany, in accord-
ance with the Fuehrer’s wish, is to leave the relatives and the
population in uncertainty as to the fate of the perpetrator.

The relatives, likewise the German offices and offices abroad may
only be told that the perpetrator has been apprehended and that
the status of the proceedings permits no further giving of infor-
mation.

Special provisions regarding the defense of the perpetrators
who have been brought to Germany do not seem to be necessary.
The armed forces courts intend to judge only criminal acts which
are punishable by death. In accordance with Article 49, section 1
of the Wartime Rules of Court Martial Procedure the presiding
judge always has to provide a defense counsel for such penal acts.

214

Subsequent to the reference letter of 31 January 1942, a copy
of the translation of a further letter of the Secretary General of
the Belgian Ministry of Justice dated 22 December 1941, is trans-
mitted. The Reich Minister of Justice has informed the High
Command of this, for further disposition.

The Chief of the OKW
BY order:

Signed: DR. LEHMANN
Certified :

[Signed] Buhrke

Amtsrat

TRANSLATION OF DOCUMENT LEHMANN 316
LEHMANN DEFENSE EXHIBIT 283

LETTER FROM FRENCH DELEGATION TO THE GERMAN ARMISTICE
COMMISSION, 3 AUGUST 1944, CONCERNING INVESTIGATION OF
THE CONDITIONS OF FRENCH "POLITICAL PRISONERS"

IV

French Delegation to the German
Armistice Commission

The Chairman

No. 48335 /AE.

Wiesbaden, 3 August 1944
630/44

The Chairman of the French Delegation to the German Armistice
Commission Army Corps [Lt.] General Berard

To the Chairman of the German Armistice Commission
Lieutenant General (Arty.) Vogl

Subject: Fate of the political prisoners

Sir:

My government has instructed me to draw your attention to
the fate of numerous Frenchmen who were arrested by the Ger-
man authorities in France and have been either imprisoned in
France or Germany, or committed to concentration camps in
Germany.

According to the information received, which could not be
checked in all the cases, the number of Frenchmen thus arrested
or interned is said to be about 150,000.

Except for a few among them who are serving prison sentences

215

passed by German military courts, they have not been brought to
trial and were arrested solely either to be taken into protective
custody, or as suspects or even as hostages ; hence, they are in the
main, “political prisoners”.

It is true that some of them have been authorized to write to
their families or even to receive parcels from them, but this privi-
lege is by no means customary in all the prisons, to judge from
the numerous steps taken with French agencies by families who
complain about not having received any news from persons who
were arrested many months or years ago.

Up to June of this year the Chief of the German Police in France
accepted petitions for information and release transmitted by the
French Ambassador, State Secretary with the Government Chief
and Plenipotentiary General for the Occupied Territory, but re-
cently he had given notice that he was no longer in a position to
accept such petitions during the military operations which have
developed as a result of the landing of Anglo-American forces.

It is hardly necessary to stress the moral sufferings caused by
the absence of any news both to the families and the prisoners
and, what must be added in the case of the latter, to the physically
depressing effect of prolonged imprisonment; consequently it ap-
pears to me unnecessary to emphasize that all “political prisoners”,
no matter to what category they may belong, should be accorded
every material and moral support compatible with their situation.

So far all steps taken in this direction have failed.

The French Government, without intending thereby to pass
judgment on the legality of the arrests made and acting solely in
consciousness of its obligation to protect its nationals, has there-
fore instructed me to inform you that it is prepared —

1. Either to designate or create a French agency whose repre-
sentatives might be authorized by the Reich government to visit
the “political prisoners”;

2. Or to instruct the French Red Cross in cooperation with the
German Red Cross to grant these prisoners the necessary aid ;

3. Or, in agreement with the Reich government, to ask the
International Committee of the Red Cross in Geneva to assume
that role.

I have, therefore, the honor to ask you to examine, together with
the competent Senior Reich authorities, the measures which might
be taken to improve the moral and material conditions under which
the French citizens who are “political prisoners” are living.

I have the honor to be, sir

Yours faithfully

For Army Corps [Lt] General Berard (absent)

Brigadier General Vignol

Signed: Vignol

216

PARTIAL TRANSLATION OF DOCUMENT NG-262
PROSECUTION EXHIBIT 820

EXTRACT FROM SURVEY OF THE DISPOSITION OF NIGHT AND FOG
PROCEEDINGS COMPILED BY MINISTRY OF JUSTICE
ON 30 APRIL 1944

Copy

IV n 313/42 secret

Survey of the Disposition of Night and Fog Proceedings
as of 30 April 1944

I. The following cases were transferred by the armed forces
authorities to —

a. Office of the District Attorney Kiel — 12 proceedings with
442 defendants.

b. Office of the District Attorney Oppeln — 729 proceedings with
4048 defendants.

c. Office of the District Attorney Breslau:* — 1273 proceedings
with 2149 defendants.

Total: — 2014 proceedings with 6639 defendants.

* In the case of Breslau, as of 31 March 1944.
*******

EXTRACTS FROM THE TESTIMONY OF DEFENDANT LEHMANN*

DIRECT EXAMINATION

*******

Dr. von Keller (counsel for defendant Lehmann) : I will now
turn to a new sphere, that is, to the Night and Fog Decree, the
“Nacht und Nebel” Decree. I would first like to deal with its
origin. Witness, what do you know about the origin of the Night
and Fog Decree, the underlying reasons and the actual cause which
prompted its issuance?

Dependant Lehmann : I have already told the Tribunal that
the distrust of Hitler against our administration of justice had
manifested itself in different forms. Sometimes on one occasion
and sometimes on another. And this distrust is also the root of
this decree. The immediate reason, as far as I recall, was as
follows: Hitler had reserved to himself the right generally to
confirm death sentences against women from the occupied terri-
tories, that is, to confirm the petitions for clemency. In summer

* Complete testimony is recorded in mimeographed transcript, 15-16, 19-20, 26-27 July 1948,
pp. 7909-8180; 8481-8582.

217

1941 he had commuted the sentence of a French woman who had
been active in the resistance movement. She was a very brave
woman who had helped many prisoners of war to escape across
the boundary into unoccupied France. She had been sentenced
to death in France, and Hitler did not confirm the sentence but
ordered it to be commuted into a prison term, and on this occa-
sion, without any suggestion from outside, he added that this
woman was to be taken to Germany and was to be excluded from
the outside world in Germany. This decision rather took us by
surprise at the time, and this decision was generalized subse-
quently by Hitler. In September, as I stated today, I was usually
on official trips and at the end of September and beginning of
October, I spent my leave in the Tyrol. Upon my return I found
a lengthy communication from Field Marshal Keitel directed to
the Chief of the Armed Forces Legal Department. In the com-
munication it was stated that Hitler had generalized his decision
which he had made in this case of the French woman, which I have
just related. The Communist subversive activities in the occupied
countries were getting worse, and sentences by the courts, which
were imposed after quite a long time — one didn’t know how long
it took — and which might even be prison sentences, had no effect
at all. Hitler had ordered that in the occupied territories only
such matters were to be brought before the courts in which an
immediate death sentence could be pronounced. All other persons,
and now the literal expression followed : “were to be taken across
the frontier under cover of night and fog, and to be excluded from
the outside world in Germany.” That would have a deterrent
effect, but the imposition of sentences in the occupied territories
did not have such a deterrent effect.

Q. And did this order contain any further details, that is,
Keitel’s order?

A. Yes, it did. It was a lengthy communication written by him-
self, but I no longer recall further details. What I stated was the
basic outline.

Q. What were you to do on the strength of this communication ?

A. We were to formulate an order pursuant to this directive.

Q. Did other persons also read this communication?

A. Yes. It was read by my deputy, Dr. Sack, and my experts;
subsequently, however, I showed it to a wider circle of persons.

Q. Did you discuss the matter with other people?

A. Yes. I did.

Q. Now, what happened in this matter, particularly as it re-
lates to Keitel?

A. I left the matter in my desk until Keitel came to Berlin.
Then I called upon Keitel to have a long discussion with him alone

218

without any witnesses, and thrashed out this whole matter in great
detail with him. I put forward all the arguments I could think
of, and I had the feeling that my objections made some impression
on the Field Marshal. Our discussion revolved in a circle because
he kept harping on the danger of the French resistance movement,
saying that in the opinion of Hitler it was a means of safeguard-
ing the security of the occupation troops —

Dr. von Keller: Your Honor, the topic of the French resist-
ance movement will be discussed by me at another stage, if it
please the Tribunal.

A. [Continuing] — From this talk with Keitel I had the feeling
that at this time he himself had contradicted Hitler, but that he
had been unsuccessful with his objections. After listening to me,
Keitel said, “Well, leave the working out of this order for the time
being. I will talk once more with Hitler”. Then he called me once
again, and one sentence stuck in my memory from this second
discussion. I have often quoted this sentence, and I have also
stated it once before this Court. Keitel said to me, “The Fuehrer
said, ‘Nobody can contest that I, Hitler, am a great revolutionary.
If so, then I know best how to suppress revolutions and insurrec-
tions, and I know more of this than generals or lawyers’.” I have
quoted this significant sentence so often that, as I stated before,
I know it by heart.

Q. Did you deal with this matter by yourself after these
discussions with Field Marshal Keitel?

A. No, because many agencies were interested in this matter,
above all the High Commands of the three branches of the armed
forces, the Legal Department, and in the OKW the office of Ad-
miral Canaris, the Office for Foreign Counterintelligence. Our
Legal Department played a more passive part in this because
something was to be taken away from them, and the reasons ad-
duced for this measure were military considerations. They were
measures for the security of the troops. For that reason, other
agencies had to be included.

Q. How was the order appraised by these people who got to
know of it?

A. Generally speaking, very adversely, particularly so by Ad-
miral Canaris who was one of the most annoyed and who even
before my return from my leave must have talked about it with
Keitel. I recall having myself talked to Canaris when he said,
“If a Nazi Party rally were to be held this year, then it would be
called the Nazi Party Rally of Folly.”

Q. Can you explain why the Nazi Party rally of this year was
to be called the Nazi Party Rally of Folly?

893964—51 15

219

A. Because all the stupidities that could possibly be perpetrated
in the conduct of the war were perpetrated in 1941.

Q. I mean something else, Witness.

A. Yes. I see what you mean, because all Nazi Party rallies
received a special name.

Q. What was the principal tendency in the drafting of this order
which was to be forthcoming?

A. As with all these Hitler orders, the main thing was first to
gain some time and to see whether this decision was irrevocable.
The latter had been ascertained by an inquiry of Keitel’s with
Hitler, and then as with all orders of this type, it was important
to deprive Hitler’s order of its sting as far as one could.

Q. Now, how did you envisage that as being possible?

A. The main point of our line of attack, as my talk with Keitel
showed, was the secrecy, the seclusion of people from the outside
world, and that had been described by Keitel again and again as
the core of the whole matter. That was the essential thing for
Hitler, and at any rate, for the time being, no change could be
effected in this. But another main question remained. In the
communication of Keitel to me, the question had been left open
as to who was to take over these people from France inside Ger-
many, that is, into whose hands they were to be committed. There-
upon, of course, I questioned the Field Marshal immediately and
he told me, “it would be best in keeping with Hitler’s tendency if
these inhabitants were to be committed to the police inside Ger-
many.” Thereupon I said that could not possibly be done, and
there appeared to me a chance of getting somewhere at this point.

Q. How did you think you could proceed further?

A. If the reason for this decree was to be sought in Hitler’s
hostility against the Wehrmacht justice, then one way out re-
mained. One could try to hand over the suspects from France to
the civil judiciary in Germany, that is, not the Wehrmacht judi-
ciary. Then at any rate, their committal to the police was pre-
vented. The difficult thing for me was that if we took this path,
then the discrimination of the Wehrmacht justice as against the
civil judiciary became quite manifest. But this was merely an
objection inspired by prestige considerations and that had to be
overcome, although it wasn’t easy for us. Admiral Canaris, as the
main person concerned, shared the opinion and exerted strong
influence upon Keitel along these lines.

Q. You just said that Admiral Canaris was the main person
concerned ?

A. I did because his office included the Abwehr which also in-
cluded the prevention of Communist resistance movements.

Q. Do you mean only Communist resistance movements?

220

it«d

A. Resistance movements of all types.

Q. Did you discuss this idea with the chiefs of the legal depart-
ments of the three Wehrmacht services and with the other people
interested, that is, this very special idea?

A. I did. As always I informed the chiefs of the departments
and talked the problems over with them in order to ascertain if
a better idea than the one I had thought of had occurred to any-
body else, or whether anybody could suggest a different way out,
but nothing materialized.

Q. Now, what became of your endeavor to leave this matter to
a judicial authority? What steps did you take?

A. After some difficulties, I finally got Field Marshal Keitel’s
consent to negotiate with the Ministry of Justice — which I did.
I called upon State Secretary Freisler in the Ministry of Justice,
under whom I myself had served.* I expounded the position to
him, and he was intelligent enough to realize what I said, and he
promised that he would assert his influence for a solution along
the lines that the Ministry of Justice was to take over these mat-
ters with their own courts. He didn’t do it willingly, but he con-
ceded that that was better than turning matters over to the police.

Q. Did you also discuss a more practical treatment with State
Secretary Freisler?

A. Yes. Naturally I couldn’t guess what numbers of perpe-
trators might be involved. Therefore, I asked him as one of my
very first questions whether the justice administration could billet
the inhabitants from occupied countries at all, whether they had
room for them, and he replied that that would cause no trouble
whatsoever. That was a most important point for me.

Q. You said the inhabitants of the occupied countries. You
mean by this term such persons from the occupied territories who
were to be indicted?

A. Yes, who were to be indicted.

Q. Did the Ministry of Justice grant its consent?

A. Yes.

Q. And after this consent had been given, what happened in the
matter?

A. When the basic consent had been given, Field Marshal Keitel
made no more difficulties. The services of the Wehrmacht had
previously agreed to this solution and we could now start formu-
lating Hitler’s order in a draft.

Q. Now how was this draft arrived at?

A. The whole execution of this order was in the hands of the
three branches of the armed forces and of the office of Canaris,

* A number of Freisler’ s associates in the Reich Ministry of Justice were charged with
criminal participation in the execution of the “Night and Fog” decree in the so-called “Justice
Case”, United States vs. Josef Altstoetter, et al. (Case No. 3), Vol. Ill, this series.

221

the counterintelligence service. Hence we made the draft jointly
with these agencies. As was customary in such a piece of work,
suggestions and proposals came from all sources. We compiled
them and submitted them in a draft ; this draft was discussed and
after agreement was reached about technical details, the draft was
sent to Field Marshal Keitel with a notation to this effect. The
Armed Forces Legal Department was only negatively concerned
in this affair because something had been taken from our sphere.

Q. Which was the department most affected by this decree in
the OKW?

A. That was the counterintelligence service under Canaris.

Q. Did the counterintelligence believe at the time that more
could have been attained than was actually achieved?

A. No, because Canaris had made all efforts with Keitel just
as I had.

Q. What was the evaluation of the people of the legal depart-
ments of the three branches of the armed forces regarding this
decree?

A. Their appraisal had become a little more friendly for a
practical reason. They suggested that if Hitler insisted upon it,
then of course he can force many death sentences in the occupied
territories in the case of resistance movements ; but if instead, the
participants in illegal resistance movements were to be shipped to
Germany by Hitler, then it was probably possible that in Germany
the penalties might be less severe, because when the sentences
were passed, as was ordered, under strict secrecy with the public
excluded, then the sentence itself has no deterrent effect. Hence,
it was not necessary to pronounce death sentences, as in France.
Then the core of the measure lay in what Hitler had in mind,
namely, the seclusion from the outside world, and that was a sub-
stitute for the death sentences. To this extent, therefore, the
appraisal of this whole project became a little more friendly.

Q. Now, after this idea had been treated technically in the dif-
ferent departments of the OKW, was it approved by Hitler?

A. Yes. Keitel submitted the draft to Hitler and he approved,
and we were very pleased that Hitler conceded the inclusion of the
civil judiciary.

Q. I will now like you to turn to the documents and to explain
which document contains the first directives which were drafts
issued as a result of Hitler’s instructions?

A. It is rather mixed up in this book 9-J, and I will have to
make matters clear from the outset. The decree proper, by Hitler,
is contained in book 9-J, on page 118 of the English and 204 of
the German. It is Document 1733-PS, Prosecution Exhibit 797.
It bears the heading, the Fuehrer and Supreme Commander of the

222

Armed Forces. It is entitled, Directives for the Prosecution of
Criminal Acts against the Reich or the Occupying Power in the
Occupied Territories of 7 December 1941. It is signed, “by order”,
(la) Keitel. That is the decree proper. The decree was dis-
tributed with a communication dated 12 December, it is Docu-
ment 669-PS, Prosecution Exhibit 798. This communication dated
12 December, is the cover letter of the Chief of the OKW, which
was appended to the decree, which I mentioned before, upon its
distribution. The Tribunal will find on the next page —

Q. May I ask you to quote the passage from which it is evident
that Prosecution Exhibit 797, that is, the directives of 7 December,
was distributed along with Exhibit 798?

A. Yes. The cover letter, dated 12 December 1941, bears the
notation “one enclosure”, and the last paragraph of the cover
letter states, “attached directives for the prosecution of criminal
acts,” from which it is evident that the directives previously de-
scribed by me in Prosecution Exhibit 797 were the enclosures to
this cover letter, dated 12 December 1941. That is important be-
cause in the document book, the next page, 122 of the English and
202 of the German, contains an implementation order. The first
ordinance is undated; that is a self-contained piece and not the
enclosure to the communication dated 12 December.

Q. Will you please turn once again to Document 669-PS, Prose-
cution Exhibit 798?

A. That is the cover letter by Keitel, and in this cover letter it
is expressed in a particularly clear manner that this was a per-
sonal idea of Hitler’s from which we wished to keep aloof. The
communication refers three times to the fact that it all emanated
from the Fuehrer. It starts, and I quote: “It is the long con-
sidered will of the Fuehrer * * *.” It then goes on to say: “the
Fuehrer is of the opinion”, — and at the end it states : “the direc-
tives accord with the opinion of the Fuehrer”. We couldn’t state
any more clearly whence it all emanated.

Q. The decree itself and the implementation ordinances will be
discussed by me subsequently in a systematic matter. Witness,
will you briefly state the developments as a result of this first
order?

A. We had distributed the first order to all agencies concerned.
The Tribunal will find the distribution list on the last page of the
Document 1733-PS to the Foreign Office and to all agencies which
might be considered. That is including the services of the armed
forces and the armed forces commanders. The effect of this new
idea of Hitler’s was such as we had anticipated and the Gericht-
sherren [Armed Forces judge advocates] and the judges in the
occupied territories were equally indignant; mainly about this

223

eternal suspicion with which their activity was viewed. Hence
they did all they could in order to sabotage this decree.

Q. Were you afraid of any repercussions on the population?

A. Yes. I had told Keitel about everything particularly with
respect to France. Before the First War I had been to France.
As a soldier I was in France during the First World War. Be-
tween the First World War and the Second World War I had
frequently been to France and I thought that I knew France well,
and I told the field marshal that it was unintelligible to me that
one wanted to stage such a matter in France, in a country with
the most strongly developed national pride and particularly de-
veloped feeling for justice. I told him it would have the very
opposite effect of what Hitler thought but it was all in vain.

Q. You said that the agencies which received a copy of the
decree delayed it or else tried, as far as possible, to sabotage it.
Can you describe it in more detail?

A. Certainly. First the implementation to this decree was set
in motion very hesitantly and then in many ways we tried to
circumvent the decree. I think I’d like to discuss the particulars
in discussing the decree itself.

Q. Since the transfer of persons arrested from the Wehrmacht
judiciary had been ordered to the civil judiciary, did discussions
take place between Wehrmacht judges and civilian judges?

A. Yes. The implementation of the order was handled by the
Wehrmacht judiciary in the occupied territories and it was
handled by the civil judiciary in Germany, and those two agencies
met for conferences. Representatives of the civil judiciary were
in France and in Belgium and they discussed it with the agencies
of the army judiciary on the spot, but I didn’t take part in these
conferences nor did my agency participate.

Q. Now, how was the decree subsequently appraised by mem-
bers of the Wehrmacht courts?

A. The atmosphere turned completely in favor of the decree.
After the commanders in France and in the other occupied terri-
tories had seen that sentences in Germany were much more lenient
than would have been possible in the occupied countries they most
willingly turned over these persons. Subsequently reports were
made to us along these lines.

Q. What matters did they turn over?

A. They only turned over such matters in which an urgent
suspicion existed as to a crime having been committed, that is
investigations in France, the country which was most concerned,
had established a very strong suspicion against the person con-
cerned. That was actually against the meaning of this decree
because Hitler didn’t want any investigations to be carried out

224

in the occupied territories. Hitler’s main opinion was that in
cases where an immediate death sentence could be imposed, sen-
tence should take place in France. All other matters, even in the
case of the shadow of a suspicion, were to entail the transfer to
Germany and that was converted to its opposite by the subsequent
handling of the matter in France and Belgium.

Judge Harding: May I interrupt to ask a question? You say
the military authorities were impressed by the leniency of the
sentence imposed in Germany and became favorable to this decree ?
Now, just what reports were made to the military authorities
regarding those sentences imposed? I thought they were sup-
posed to be secret?

Defendant Lehmann: Yes. Secret, Your Honor, as regards
other agencies but not as regards the Wehrmacht agencies which
had transferred these persons. The courts of the civil judiciary
sent copies of their sentences to the agencies of the military com-
mander in France and in Belgium, so that the military agencies
in France and Belgium could follow the fate of these matters, that
is the persons whom they themselves had turned over. That was
due to the direct negotiations between the military agencies in
France and the agencies of the Ministry of Justice which I men-
tioned briefly before, in which I had no direct share.

Judge Harding: And they made these reports regularly as to
these people?

Defendant Lehmann: Reports were regularly made, Your
Honor.

Dr. von Keller: Now, after the appraisal accorded to the
Night and Fog Decree underwent a change in practical respects,
did you attempt subsequently to modify the Night and Fog Decree
and, if so, along what lines?

A. Yes. We did make attempts along the line which seemed to
me the stumbling block. That was in the line of its secrecy. This
became all the more a nuisance to me the longer the war lasted.
We tried in this respect to secure a relaxation, because we received
a series of communications as to what difficulties this strict secrecy
entailed and the severities involved. Such communications were
submitted by us to Field Marshal Keitel with, I can only say a
tiresome regularity, but things remained the same. Hitler was
completely adamant on this point. I had descriptions given to me
from persons in his entourage, and heard again and again that
if Hitler once had an idea fixed in his mind then it was not pos-
sible for any power in the world to dissuade him, and on this very
point I have had sufficient evidence. Field Marshal Keitel, in talk-
ing to me, invoked the fact that the resistance movement became

225

ever more dangerous and that therefore this order had to remain
in force.

Q. You talked about the French resistance movement which was
the reason for this whole procedure. What did you know about
the French resistance movement?

A. I knew what I had been told by Keitel in the course of my
negotiations, and what I had heard from other sources, and from
France itself, and even as early as 1941, it was a very menacing
thing. Assaults were regularly repeated on German soldiers, on
cinemas, on soldiers’ hostels, on hostels of our female personnel
in the occupied territories, very many attempts to blow up rail-
roads, many cuttings of cables, and other matters of this type.

* % Jfc Sfc Jjc }{c

Q. And how was the French resistance movement generally
appraised in those manifestations which you just described? I
mean, what was the legal evaluation given to these acts.

A. It was an illegal insurrection against an occupying power.

* * * * * * *

Q. Now, the indictment shows that the prisoners under the
Night and Fog Decree, at any rate in the view of the prosecution,
were cruelly treated by the police and killed on the strength of the
Night and Fog Decree. Can you make any statements regarding
this assertion?

A. I hope that I shall succeed in clarifying this point. In the
two preceding trials it played a decisive part. I think that I will
be successful in submitting new data to the Court for their ap-
praisal of the context. I would first emphasize again that in the
decree dated 7 December 1941, and in the implementation ordi-
nance, the term “secret state police” is not mentioned at all, and
it was our objective, as I stated, the objective of our endeavors,
to eliminate the police and to get the courts to deal with it, and
that was the decisive improvement which in my opinion had been
secured through my efforts.

Q. Was the term “concentration camp” mentioned in the decree?

A. No. This term wasn’t used either, and it is bitter for me
personally that after I had made all these efforts I am to be held
responsible for this development as the sole individual responsible.
I have aimed at and even secured the very opposite. That the
development subsequently followed other paths and that Hitler
later once again intervened was not my fault. It was not within
the power of a higher civil servant, holding the rank of Ministerial-
direktor, to change the instructions of the State in the Third
Reich or to impose his own will upon the dictator.

226

Q. Now, the prosecution contend that through the Night and
Fog Decree thousands were sent into concentration camps.

A. Well, now, I only ask myself where evidence is to be found
showing that they got into the concentration camps by virtue of
this decree. I hope that we shall be able to enlighten the Court
about this. In the prosecution documents, in book 9-K, there is
Document 2521-PS, Prosecution Exhibit 805. This document was
already submitted in the trial of the Nazi lawyers*. It is a decree
by the Main Administration Office of the SS, dated 18 August 1942.
The enclosure to this decree reveals that the police went their own
ways of which we knew nothing. It is first stated, and that is
quite correct, that the suspected perpetrators were to be put before
a special court, and this is followed by the sentence that, in the
event that such a transfer was not possible for some reason or
other, they will be assigned to a concentration camp, being sub-
jected to protective custody. It is quite unintelligible to me what
reasons could have prevented the transfer of persons to judicial
authorities. Essentially stronger proof for what I wish to set
forth is contained in [document] book 9-K of the prosecution,
page 57 of the English, Exhibit 811 of the prosecution. [Doc.
1932-PS]

Q. Doctor Lehmann, in the case of Exhibit 805, [2521-PS,
Pros. Ex. 805] you wish to demonstrate, I take it, that the SS
went their own ways ?

A. That is what I wish to demonstrate.

Q. Without the decree?

A. Yes, without the decree, and I wish to prove it by the next
document, Prosecution Exhibit 811, which I have just mentioned.
As far as I have been able to ascertain this was neither introduced
before the IMT nor in the Justice Case; and this document by
itself furnishes proof that the police did what they wished to do
without any regard to the decree. It is stated in the communica-
tion, in the middle of the first paragraph, laying down how the
prisoners were to be treated: “It is irrelevant whether it con-
cerned a Night and Fog prisoner of the old type or of the new
type.” Night and Fog prisoners of the old type denotes those
whom the military courts had handed over to the assigning agen-
cies for transfer to Germany, whereas, and this is the crucial
passage: “* * * the so-called new type Night and Fog prisoners
have to be taken directly to the arresting agencies of the Security
Police and the Security Service in the concentration camps in
Germany without the participation of the military courts.” That
is the point by which it can be proved in the light of these docu-

* See the “Justice Case” (United States vs. Josef Altstoetter, et al.) Case No. 3, vol. Ill,
Section YD 3, Document 2521-PS, Prosecution Exhibit 310.

227

merits, and we shall corroborate this proof by other evidence that
the police acted on its own initiative, irrespective of the decree.
That the police clandestinely, without bothering about the decree,
brought people to Germany who had had nothing to do with the
military courts in France, and that they kept those people in their
own custody behind our backs.

* * * * * * *

Q. Can you perhaps explain whether you knew this communi-
cation, reproduced in Prosecution Exhibit 811, before?

A. Of course not, because the police were interested in keeping
this secret from us.

Q. Did you hear anything at all that the police, acting on their
own authority, carried out such arrests during the war?

A. Yes. I heard this at a much later stage. That was when
the whole decree had already been rescinded.

Q. Which decree?

A. The decree dated 7 December 1941.

Q. That is the Night and Fog Decree proper?

A. Yes. I find evidence for this in Document 834-PS, Prosecu-
tion Exhibit 827. It is a communication of the Armistice Com-
mission, dated August 1944. At that time this decree had already
been rescinded. The communication refers to a note by the French
Government which reveals that the number of political prisoners
in France had tremendously increased during the last months, and
a number of statements are attached to this communication. Thus,
it became known to what extent the Higher SS and Police Leaders
in the occupied territories acted on their own authority in arrest-
ing persons and shipping them to Germany. It must have in-
volved very large numbers. The French note is not contained in
the documents of the prosecution. We have, however, found it,
and it is evident from this note that the French Government had
estimated the numbers of persons arrested in France at 150,000.
They are not figures which could have had any connection with
the Night and Fog Decree.

Dr. von Keller: Your Honor, may I call your attention to the
fact that this note of the French Government will be submitted
by us in document book 6 of the defense as Document Lehmann
316, Lehmann Exhibit 283.*

A. (Continuing) This morning I put before the Court the
figures of the Ministry of Justice which, until 30 April 1944,
amounted to not even 7,000 and these figures mentioned here in
the French note reveal to what extent the police had availed
themselves of their powers.

* Document reproduced earlier in this section.

228

Q. Did you reply to this communication of the Armistice Com-
mission?

A. Yes. We did reply to this communication and we set forth
the new legal position such as it had been created at that time but
I’d like to discuss this at a later stage.
*******
CROSS-EXAMINATION

* * * * * * *

Mr. Fulkerson: Now, then, on 6 February, 4 days after
Canaris issued his regulations your office promulgated the final,
definitive set of the implementation regulations, the one of 6 Feb-
ruary.

Defendant Lehmann: No. That is a mistake. These imple-
mentation regulations of 6 February, come from the Reich Min-
ister of Justice. It is Exhibit 801.

Q. You have book 9-K before you?

A. Yes. I have it.

Q. I am referring to 8S6-PS, which is Exhibit 801 — no, I am
sorry, it is Exhibit 804, at page 18 of the English and 16 of the
German.

A. I think, Mr. Prosecutor, you are under a misapprehension.
Document 836-PS, Prosecution Exhibit 804, page 18 of the
English, page 16 of the German, is the draft of a second imple-
mentation order which, at the end of August 1942, was issued as
a basis for work.

Q. You say this was dated in August?

A. Yes. This can be seen. On the communication there is no
date, but one can establish it from Exhibit 815, on page 64 of the
German and 64 of the English. Here two communications are set
down. In the first one, on the second half of the page, dated
6 November 1943, it quotes in brackets, the draft to serve as the
basis of work of a second implementation order, dated 27 August
1942, and it has the same file number as the draft about which
the prosecutor has just been speaking in Exhibit 804 on page 18
of the English, and that is how one can reconstruct the date.

Presiding Judge Young: Well, what is the date of this —
27 August — this 804?

Defendant Lehmann : Yes, Your Honor, 27 August 1942.

Mr. Fulkerson : If Your Honors please, I don’t want to go
into a detailed argument about these documents. The only reason
I asked him about the date on this is that, as you see, it has no
date. It is our contention that it was dated 6 February, but —
but there is no possibility that this decree, that this second imple-
mentation decree then could have been dated 6 February; that is
out of the question?

229

Defendant Lehmann : Yes. I think it is improbable.

Q. At any rate, this draft, whatever the date of it is, was the
definitive regulations for the carrying out of the Night and Fog
Decree, was it not?

A. It was a further implementation decree.

Q. Well, it completely supplanted your first decree, did it not,
your first implementation decree?

A. Yes, yes.

Q. So it was the definitive regulation governing the carrying
out of the Night and Fog Decree?

A. Yes.

Q. And it, too, was drawn up in your office?

A. Yes. In the same way and after the same negotiations as in
all such regulations, namely, discussions with all the agencies
participating and on the basis of the contributions and desires
which these people expressed.

Q. Did you have those conversations personally?

A. Yes, certainly.

Q. So I take it that you also personally supervised the composi-
tion of this regulation?

A. Well, I don’t know details about it any longer, but of course
the whole thing was in front of me.
*******

PARTIAL TRANSLATION OF DOCUMENT LEHMANN 301
LEHMANN DEFENSE EXHIBIT 268

AFFIDAVIT OF DR. WERNER HUELLE DATED 29 FEBRUARY 1948

I, Dr. Werner Huelle, born on 30 April 1903, in Stettin, residing
in Oldenburg, Hermann Almersweg 10, was first of all warned
that I render myself liable to punishment if I make a false affi-
davit. I declare upon oath that my statement corresponds to the
truth and was made in order to be submitted as evidence to the
Military Tribunal in the Palace of Justice, Nuernberg, Germany.

From November 1937 until April 1945, I worked in the Armed
Forces Legal Department. My work with that department during
the above stated period was interrupted only in the summer or
autumn of 1940 and 1941 when, in each case, I was assigned to
the army in the field as judge advocate for a period of about 3
months.

My knowledge of the so-called “Night and Fog Decree” is based
on the fact that I had access to the significant documents.
*******

230

No other decree in the field of criminal jurisprudence existed in
which Keitel took a personal part to such an extent as in this case.
Dr. Lehmann, and in his absence Dr. Sack, did not and was not
allowed to make a single independent move in this field. The most
important questions repeatedly concerned the crimes which were
under consideration and the treatment of the innocent parties who,
through accidental and never totally avoidable circumstances, be-
came involved in the proceedings. These questions were clarified
by means of a thorough exchange of opinion by all participating
agencies, and Keitel always made the decisions personally and by
no means along the lines of Dr. Lehmann’s opinion.
*******

The decree came at first as a shock to the military courts.
Finally, however, the [military] judicial authorities withdrew,
quite relieved, because they were hoping that the sentences im-
posed by the civil special courts, copies of which were submitted
to the [military] chief justices, would be milder than could have
been the case abroad. The branches of the armed forces and the
Ministry of Justice, therefore, did not submit any basic alteration
requests to the OKW, with the exception of one which was for-
warded in spring 1943, from Holland and advocated a complete
exclusion of the courts.

Dr. Lehmann gave his full attention to this suggestion and,
through me, made it the object of an unofficial exchange of ideas
in July 1943, in correspondence with the Ministry of Justice; he
dropped it again, however, for the same reasons which had pre-
viously moved him to bring in the civil court system.

Instead, Dr. Lehmann, in accordance with his ideas on the
matter, tried to strengthen the power of the military courts as
far as was in his power to do so. Obviously in contradiction to
the decree, he always demanded of the military courts that docu-
ments be examined thoroughly right on the spot, and even that
the police investigations be supplemented by the military judges
so that innocent persons would not be taken to Germany. The
legal advisers to the higher military commanders were also given
instructions to examine the documents very carefully, so as to
complete the investigations before submission to the civil courts.
The counterintelligence offices, which directed the police investiga-
tions, were given instructions to the same effect.

Also the week’s respite was later on no longer counted from the
[date of] arrest of the perpetrator but from the [date of] con-
clusion of the investigations. With this practice, Hitler’s main
idea was secretly frustrated. Dr. Lehmann even succeeded in the
fall of 1943, in getting through a supplementary decree to the
effect that even this deadline no longer had to be adhered to in

231

individual cases. When, in accordance with the regulation of
civilian administration of justice, Keitel decided upon Canaris’
demand that the persons acquitted in the main trial were not
allowed to return to their homes because they might give informa-
tion about the fate of their accomplices, that order was not passed
on until the police had ordered these prisoners to be put in the
best category of treatment: 1 at first they were in no way willing
to make this concession. It is solely due to the efforts of the
Armed Forces Legal Department that this order finally went
through.

To the outsider who has not himself experienced Keitel’s stub-
bornness in regard to these problems and the vigilant distrust of
the police, these successes may seem small. To us, they were a
repeated stimulus not to give up the guerrilla warfare [kleinkrieg]
and to continue to sap the foundations of the decree. With their
transfer to the civilian administration of justice the perpetrators
left the armed forces domain of responsibility. The chief judges
with the military commanders merely received a copy of the judi-
cial decision which closed the proceedings. Dr. Lehmann always
held that these verdicts were arrived at in a criminal procedure
which took place according to the rules which were binding for
everybody.

An exception existed only insofar as a large number of wit-
nesses had to be heard by way of written depositions because the
long distance and the secrecy enjoined did not allow of their per-
sonal appearance at the main trial. Important witnesses were
examined by the public prosecutors who went to the occupied
territories for this purpose or, upon their request, by the military
judge. The armed forces had no right of control over the civilian
administration of justice and Thierack, who took over the ministry
as early as the summer of 1942, was not a person who would
allow himself to be guided, let alone supervised, by Dr. Lehmann.
The general idea prevailing in the legal departments of the armed
forces was that the prisoners under investigation as well as those
convicted were to be treated according to the rules applying to
Germans, unless the secrecy order prescribed deviations for con-
tact with the outer world. Accordingly, any danger to the lives
of the prisoners in the prisons of the Department of Justice could
not be expected. 2

One Sunday early in July 1944, one of Keitel’s adjutants called

1 The reference appears to be to the letter of the Armed Forces Legal Department signed
by the affiant Huelle, 10 November 1943. Document NOKW-2579, Prosecution Exhibit 815
reproduced earlier in this section.

2 The balance of this affidavit deals mainly with so-called “Terror and Sabotage Decrees”
which is the subject of the materials immediately following this section. However, since the
affiant Huelle dealt with both matters in his affidavit, and related events concerning both topics,
the affidavit has been reproduced here in its entirety.

232

of

ris’

not

na-

sed

the

k

;he

it

ib-

of

a

d

ir

is

i-

e

r

me up in my Berlin apartment and asked for Generalrichter
[Military Judge] Thissen, who as usual substituted for Dr. Leh-
mann during his illness, to come immediately to receive an impor-
tant order. As I was unable to reach my deputy chief [Thissen],
I drove to the adjutant’s office.

There they handed me the copy of a teletype to the military
commanders in the occupied territories and the competent police
agency. The contents were approximately the following: “The
Fuehrer has ordered that the police no longer transfer indigenous
persons who have committed offenses against the occupation forces
to the courts, but retain them in its sole custody.”

The teletype contained the abandonment of the Night and Fog
procedure. I immediately asked whether it had already been
dispatched ; after calling back the central office, they answered in
the negative. Through his adjutant I asked Keitel who happened
to be present, to stop the teletype so as to have a chance to inform
my chief at the Buehlerhoehe Hospital by telephone about the
situation. Keitel then ordered me to come in and told me in a
great hurry that even Dr. Lehmann could not bring about a change
in the order any more and that the teletype had to go out that
very day. I pointed out that the order was also interfering with
the competence of the civil special courts. In doing so I quite
intentionally alluded to Minister Thierack because I knew from
my chief that Keitel did not want to incur the latter’s enmity. At
the same time I suggested that the following sentence be added
to the teletype : “Implementation regulations will follow”. After
a short consideration Keitel approved of this. The whole discus-
sion — the only one I had with Keitel — lasted less than a minute.

The sole purpose of my remonstration was this — I wanted to
offer Dr. Lehmann a lever for his later use.

On that very same evening I informed my chief in Buehlerhoehe
by phone about the new situation. He had the documents for-
warded to him at Buehlerhoehe.

The final stage of the fight for the Night and Fog [Decree] was
then, in its first phase, conducted from Buehlerhoehe. Since I was
in Berlin, I am not familiar with details. All I know is that Leh-
mann suggested that the decree be restricted — contrary to Hitler’s
unequivocal order — to acts of terror and sabotage, and that it be
mitigated. While my chief was busy with his endeavors, the
attempt on Hitler’s life came like a bombshell, considerably
strengthening Himmler’s position by making him commander in
chief of the home forces. Before his time was up, and still ailing,
Lehmann returned to Berlin to resume personally the manage-
ment of the Armed Forces Legal Department. Himmler was quick
to note that somebody had succeeded in partly offsetting his influ-

233

erice, because the Fuehrer order had included all punishable acts
committed by indigenous persons. No sooner had his legal adviser
sent a letter of protest to the OKW referring to the clearly defined
will of the Fuehrer, than Keitel gave in and — throwing justice to
the winds — on his own initiative issued the supplementary order
of 18 August 1944, which fell completely in line with the tenor of
the teletype. However, Himmler was still not satisfied. He now
also demanded of the Ministry of Justice the surrender for labor
allocation of those already sentenced. The latter were serving
their terms in the prisons operated by the Administration of
Justice. Despite the fact that Thierack alone was authorized to
dispose of the convicts, Dr. Lehmann made an attempt to prevent
this. He, therefore, invited the representatives of many offices
to a conference in Berlin at the beginning of September. As Dr.
Lehmann was unexpectedly compelled to go to Baden-Baden for
a medical re-examination because of a relapse and Military Judge
Thissen could not be on the spot so quickly from Jueterbog, my
chief asked me to take the chair in the conference. On Dr. Leh-
mann’s instructions I gave the participants the cue, “organiza-
tional difficulties”; such difficulties did actually exist, due to the
fact that the Russians in the East and the British and the Ameri-
cans in the West stood at the Reich frontiers, a desperate position
which necessitated a large scale regrouping of troops and shift-
ing of material along the Reich railroads. To be sure, my cue was
readily picked up by the people of the Ministry of Justice and by
others. But our hope that this would result in a postponement
of the problem was frustrated by the fact that the representative
of the police, referring to unequivocal directives of Hitler em-
phatically insisted on the demand that these detainees be also
handed over to him by the Minister of Justice for allocation to
labor. But by stressing the organizational difficulties we succeeded
in preventing the prompt handing over by making arrangements
according to which the time for transfers was to be dependent on
later agreements between the police and the legal authorities. As
the end of the war seemed to be immediately imminent at that
time, this respite was of considerable importance on account of
possible further procrastinations. I do not know to what extent
the Ministry of Justice then actually handed over the convicted
people.

One thing must not be overlooked at any rate — only a fraction
of the Night and Fog prisoners registered in the camps of the
police were those who came under the decree of 7 December 1941 ;
because, as far as I remember, only approximately 7,000 persons
in total were handed over by the military courts to and tried by
civil courts within the 3 years. Part of them were sentenced to

234

death and executed on the basis of clear proof of guilt. The per-
sons sentenced to prison terms were handed over to the police in
compliance with orders in the fall of 1944. Obviously and with-
out the knowledge of the armed forces and of the judicial authori-
ties, in particular without the knowledge of Dr. Lehmann, the
police “spirited away” also other persons for purely political rea-
sons, and did not hand them over to military or civil courts, but
transferred them directly to their camps. Only the police had a
“Night and Fog” program, and the OKW had no knowledge of it.
Only in the fall of 1944, i.e., at the time when the Night and Fog
proceedings were already in the stage of liquidation, did the
Armistice Commission indicate in a letter that the police seemed
to be acting arbitrarily.

Dr. Lehmann is not responsible for these arbitrary acts which
deliberately transgressed the narrow prerequisites of the decree.
Oldenburg, 29 February 1948

[Signed] Dr. Werner Huelle

♦ Jfc

3. THE TERROR AND SABOTAGE DECREES

TRANSLATION OF DOCUMENT NOKW-2576
PROSECUTION EXHIBIT 823

TELETYPE, I JULY 1944, FROM ARMED FORCES OPERATIONS STAFF/
<?U. 2 TO ARMED FORCES LEGAL DEPARTMENT, SIGNED BY DEFEND-
ANT WARLIMONT, REQUESTING DRAFT OF ORDER CONCERNING
TREATMENT OF "ENEMY TERRORISTS"

Fuehrer Headquarters, 1 July 1944

Armed Forces Operations Staff/

Quartiermeister 2/ (Administration 1 )

[Stamp] TOP SECRET

One copy

PRIORITY-TELETYPE

To: Chief of Armed Forces Legal Department

Subject: Combating of enemy terrorists in the occupied terri-
tories

On account of events in Copenhagen, the Fuehrer has decreed
that court martial proceedings against civilians in the occupied

893964—51 16

235

territories must be discontinued, with immediate effect. Armed
Forces Legal Department is requested to submit by 2 July, 2000
hours, suggestions for the draft of an order concerning the treat-
ment of enemy terrorists and saboteurs among the civilian popu-
lation in the occupied territories.

Guiding principles — Terror can be countered only by terror;
court martial sentences, on the other hand, only create martyrs
and national heroes.

If German units or individual soldiers are attacked in any man-
ner, the commander of the unit, or the individual soldier, is to
take countermeasures independently, and, in particular, to ex-
terminate terrorists. Terrorists or saboteurs who are arrested
later must be turned over to the Security Service.

The Fuehrer Decree on the treatment of enemy commandos,*
dated 18 October 1942 (The Fuehrer No. 003830/42 Top Secret/
OKW/ Armed Forces Operational Staff), will remain in force as
it does not apply to the civil population.

By order:

[Initial] W [Warlimont]

OKW/ Armed Forces Operations Staff/Quartiermeister 2
(Admin. 1) No. 006973/44 Top Secret

[Handwritten] Armed Forces/Legal Department IV R (Oberstabsrichter
[Military Judge] Dr. Reger) informs Organization (F) — Lieutenant Colonel
Moll — at 1210 hours that the deadline expiring at 2000 hours cannot be met
as the sending of the teletype to Jueterbog was countermanded, and the tele-
type will be taken to Berlin — Oberstrichter [Military Judge] Dr. Huelle —
by special courier this morning and will not arrive there before noon,

1230 hours [Initials illegible]

TRANSLATION OF DOCUMENT 71 l-PS
PROSECUTION EXHIBIT 824

MEMORANDUM BY DEFENDANT WARLIMONT, I JULY 1944, CON-
CERNING EXECUTION OF TERRORISTS IN DENMARK

Armed Forces Operations Staff 2 Quartiermeister 2 (North)

No. 884/44 1 July 1944

Subject: Execution of death sentences against terrorists in Den-
mark

Notes for an oral Report

According to a report by the Armed Forces Commander Denmark,
the present strike movement in Copenhagen was caused by the
execution of the death sentences against 8 terrorists.

* See section C 4 above, concerning: the “Commando Order”.

236

All the sentences were pronounced by the Higher SS and Police
Court in Copenhagen.

[Initial] W [Warlimont]

[Handwritten] By telephone to chief OKW (Major von Szimonski) and ante-
chamber by dictation on 2 July 1944, 1120 hrs.

[Illegible signature]

Captain

Distribution :

Chief OKW via Deputy Chief Armed Forces Operations Staff
Quartiermeister 2 (North) Draft

TRANSLATION OF DOCUMENT NOKW-2577
PROSECUTION EXHIBIT 825

MEMORANDUM BY THE DEFENDANT WARLIMONT, 30 JULY 1944,
CONCERNING DRAFT OF TERROR AND SABOTAGE DECREE SUB-
MITTED BY ARMED FORCES LEGAL DEPARTMENT

30 July 1944
4 copies — 1st copy
[Initial] K [Keitel] 1 August

Armed Forces Operations Staff/

Quartiermeister 2/Admin. 1
No. 009169/44 Top Secret

[Stamp] TOP SECRET

Subject: Combating of terrorists and saboteurs in the occupied
territories

Jurisdiction over non-German civilians
[Handwritten] Admin. 1, [Illegible initials] 2 August

Notes for Oral Report

I. According to the directive issued by Chief OKW in the notes
for an oral report of 19 July 1944 (end. 2)*, Armed Forces Legal
Department submits the draft of a Fuehrer order (enclosure 1)
with the following comment: “The Foreign Office and the Chief
of the Security Police and Security Service have agreed to the
draft.”

At the request of the Foreign Office, the provision stating that
the order does not apply to Finland, Rumania, Hungary, Bulgaria,

* Enclosures (1-3) referred to in the text were not submitted in evidence.

237

Croatia, and Slovakia, nor to the citizens of these states, has
been taken out. It is to be included in the appendix.

Armed Forces Legal Department has no objections to this pro-
posal. Since the order refers only to the occupied territories,
it is plain that it does not apply to the states named. However,
it is of importance that the decree is not intended to have effect
on the citizens of these states. But this concerns principally only
the Security Service ; for the troops who are to suppress terrorists
and saboteurs on the spot are not in a position to check nation-
ality.

The Chief of the Security Police and Security Service likewise
has agreed to this. Armed Forces Legal Department shares the
opinion of the Foreign Office that it will suffice to issue the
Fuehrer decree as matter “for official use only”.

II. Opinion of Armed Forces Operations Staff — The proposal
corresponds to the draft that was submitted originally (end. 3),
with the following exception:

Deviating from Article II, Section 1 of the draft, the new pro-
posal, in accordance with the directive given by the Chief OKW,
on page 2 of the notes for an oral report (end. 2), provides for the
carrying out of the death sentences, already valid, passed by
courts martial pursuant to the provisions hitherto in force. The
Armed Forces Operations Staff points out this deviation explicitly
because, the Chief OKW has designated the draft (end. 3) as the
correct solution. That draft still contains the provision renounc-
ing the carrying out of the death sentences. Reason — to avoid
any consequences similar to those experienced in Denmark.
[Handwritten] are still being carried out daily without any repercussions
[initial] K. [Keitel]

III. Suggestion — Armed Forces Operations Staff suggests that
the present version (end. 1) be approved, the more so as the
Security Service too has agreed to it; furthermore, that Sections
1 and 2 of Article II be dropped. These concern implementation
regulations which are to be submitted by Armed Forces Legal
Department in the subsidiary decree to Chief OKW separately.
At the same time provision will be made for the distribution of
the order to be limited to a close circle of receivers and for the
troops to be informed only orally.

[Signed] Warlimont

Distribution :

Chief OKW via Deputy Chief Armed Forces Operations Staff,
1st copy

Armed Forces Legal Department, 2d copy

War Diary, 3d copy

Quartiermeister (draft), 4th copy

238

TRANSLATION OF DOCUMENT D-762
PROSECUTION EXHIBIT 826

HITLER ORDER, 30 JULY 1944, CONCERNING COMBATING OF
TERRORISTS AND SABOTEURS IN ENEMY COUNTRIES

Copy

[Stamp] TOP SECRET

Fuehrer Headquarters, 30 July 1944

The Fuehrer

OKW/Armed Forces Operations Staff/

Quartiermeister 2/Admin.l No. 009169/44
Top Secret

30 copies — [illegible] copy

Subject: Combating terrorists and saboteurs in the occupied ter-
ritories — j urisdiction

The constantly increasing acts of terror and sabotage which
are to an ever greater extent perpetrated by uniformly led bands
in the occupied territories, force us to take the most severe
countermeasures, which correspond to the rigors of the war
forced upon us. Whoever stabs us in the back in the decisive
battle for our existence, deserves no consideration.

Therefore I order —

I. All acts of violence committed by non-German civilians in
the occupied territories against the German armed forces, the SS
and the Police, and against installations which serve their pur-
poses, are to be combated as acts of terror and of sabotage in
the following manner:

1. The troops and every individual member of the armed forces,
the SS, and the Police are to overpower on the spot terrorists and
saboteurs caught in the act.

2. Anyone apprehended later is to be handed over to the nearest
local office of the Security Police and Security Service.

3. Followers [Mitlaeufer] , and especially women who do not
directly participate in combat activities, are to be assigned to
work. Children are to be spared.

II. The necessary implementing regulations will be issued by
the Chief of the High Command of the Armed Forces. He is
entitled to make alterations and additions, insofar as they are
required by the necessities of war.

Signed: Adolf Hitler

Certified :

[Signed] SCHOELZ
Oberfeldrichter [Military Judge]

239

TRANSLATION OF DOCUMENT D-764
PROSECUTION EXHIBIT 829

KEITEL DIRECTIVE, 18 AUGUST 1944, DISTRIBUTING THE TERROR AND
SABOTAGE DECREE OF 30 JULY 1944 AND THE FIRST IMPLEMENTING
DECREE OF 18 AUGUST 1944, CONCERNING THE TERROR AND

SABOTAGE DECREE

Fuehrer Headquarters, 18 August 1944
High Command of the Armed Forces

Armed Forces Operations Staff/Quartiermeister 2/Admin.l
No. 009169/44 Top Secret

Armed Forces Legal Department (1/3) No. 70/44 Top Secret
[Stamp] TOP SECRET

30 copies — 24th copy

Subject: 1. Combating of terrorists and saboteurs in the occu-
pied territories

2. Jurisdiction over non-German civilians in the occu-
pied territories

2 Enclosures

1. Enclosed are copies of the Fuehrer’s decree of 30 July 1944, 1
and of the 1st implementing decree of 18 August 1944. 2

2. The Fuehrer’s decree and the implementing decree do not
apply to Finland, Rumania, Hungary, Croatia, Slovakia, and
Bulgaria, nor to the subjects of these countries.

3. The Fuehrer’s decree is to be made known at once orally
to all personnel of the armed forces, SS and Police and must
form the subject of regular emphatic instruction. It must only
be distributed in writing down to divisions and similarly ranking
units.

4. Current legal proceeding for all acts of terrorism and sabo-
tage, and all other crimes by non-German civilians in the occupied
territories, which imperil the security or war readiness of the
occupying power, are to be suspended. Charges must be with-
drawn. The execution of sentences is no longer to be ordered.
The culprits are to be handed over with a report of the occur-
rences to the nearest local office of the Security Police and
Security Service. In the case of death sentences which already
have legal force, the present instructions are to remain valid.

1 Hitler’s Terror and Sabotage Decree of 30 July 1944, (Doc. D-762, Pros. Ex. 826) repro-
duced immediately above.

2 Keitel’s order of 18 August 1944, (Doc. D-76S , Proa. Ex. 828) reproduced immediately below.
(See testimony of the defendant Lehmann, below in this section, for discussion of Keitel’s
order.)

240

5. Crimes which affect German interests but do not imperil the
security or war readiness of the occupying power, do not justify
the retention of jurisdiction against non-German civilians in the
occupied territories. I authorize the commanders of the occupied
territories to draw up new regulations in agreement with the
Higher SS and Police Leaders. The following measures, inter alia,
are to be considered :

a. Handing over to the Security Service for forced labor.

b. Settlement by police administrative criminal proceedings.

c. Handing over to any existing local German civil courts.

d. Handing over to the courts of the country itself.

I reserve my decision with regard to Denmark.

The Chief of the High Command of the Armed Forces

Signed: Keitel
Certified :

[Signed] SCHOELZ
Oberfeldrichter [Military Judge]

Distribution :

1st copy, Commander in Chief West
2d copy, Military Commander France

3d copy, Armed Forces Commander Belgium/Northern France
4th copy, Armed Forces Commander Netherlands •

5th copy, Commander in Chief Southwest
6th copy, Plenipotentiary General of the German Armed Forces
in Italy

7th copy, Commander in Chief Southeast
8th copy, Military Commander Southeast
9th copy, Armed Forces Commander Denmark
10th copy, Armed Forces Commander Norway
11th copy, Gestapo Office — for the attention of SS Senior
Colonel Panzinger
For information:

12th copy, Army High Command/Chief of the Military
Judiciary

13th copy, Army High Command/Legal Department
14th copy, Air Force High Command/ Air Force Legal Depart-
ment

15th copy, Navy High Command/Navy Legal Department
16th copy, The SS Judge attached to the Reich Leader — SS, for
the attention of SS Colonel Bender
17th copy, Reich Leader SS, Chief SS Court
18th copy, President of the Reich Military Tribunal
19th copy, Foreign Office — for the attention of Ambassador Dr.
Albrecht

241

20th copy, Reich Minister of Justice — for the attention of
Ministerialist von Ammon

21st copy, Party Chancellery — for the attention of Reich-
samtsleiter Kapp

22d copy, Reich Chancellery — for the attention of Judge
Sommer

23d copy, Office Group [Division] Foreign Countries

24th copy, Armed Forces Operations Staff /Quartiermeister 2

25th — 30th copies, Armed Forces Legal Department (Draft and
spare copies.)

TRANSLATION OF DOCUMENT D-763
PROSECUTION EXHIBIT 828

KEITEL ORDER, 18 AUGUST 1944, EXTENDING THE SCOPE OF THE
TERROR AND SABOTAGE DECREE OF 30 JULY 1944

Copy

Fuehrer Headquarters, 18 August 1944

30 copies — [illegible] copy

High Conlmand of the Armed Forces:

Armed Forces Operations Staff /Quartiermeister 2

Administration I No. 009169/44 Top Secret

Armed Forces Legal Department 1/3 No. 72/44 Top Secret

Subject: Crimes committed by non-German civilians in the occu-
pied territories against the security or war readiness
of the occupying power

Pursuant to Article II of Fuehrer Order of 30 July 1944
(OKW/Armed Forces Operations Staff /Quartiermeister 2/Ad-
ministration I No. 003169/44 Top Secret) it is ordered :

Non-German civilians of occupied territories endangering the
security or war readiness of the occupying power by other means
than by acts of terror and sabotage are to be turned over to the
Security Service.* Article I, section 3, of the Fuehrer Order also
applies to them.

Chief of the High Command of the Armed Forces

Signed: Keitel
Certified :

[Signed] Schoelz

* See defendant Lehmann’s testimony, later in this section, for discussion of Keitel’s order.

242

TRANSLATION OF DOCUMENT 835-PS
PROSECUTION EXHIBIT 831

LETTER FROM THE DEFENDANT LEHMANN TO THE GERMAN ARMIS-
TICE COMMISSION, 2 SEPTEMBER 1944, CONCERNING THE HANDING
OVER OF ALLEGED SABOTEURS AND POLITICAL PRISONERS TO THE
SECURITY POLICE AND SECURITY SERVICE

Berlin W 35, 2 September 1944
Tirpitzufer 72-76
Telephone: Local 21891
Long distance 218091

High Command of the Armed Forces

14 n 16.18 Armed Forces Legal Department (1/3) 446/44 Secret
[Stamp] Secret

To: German Armistice Commission

Re: letter of 10 August 44 File Index No. 630/44

For information: OKW/Armed Forces Operations Staff/Quartier-
meister/Admin.l, Armed Forces Operations
Staff, Department Foreign Countries

Subject: Status of political prisoners

Reference: Fuehrer Decree of 30 July 44 (OKW/Armed Forces
Operations Staff/Quartiermeister 2/Admin.l No.
009169 Top Secret) and OKW Decree of 18 August
44 (Armed Forces Operations Staff/Quartier-
meister 2/Admin.l No. 009169 Top Secret Armed
Forces/Legal Department 1/3 No. 79/44 Top
Secret)

Conforming to the decrees, all non-German civilians in occu-
pied territories who have endangered the security and war readi-
ness of the occupying power by acts of terror and sabotage, or in
other ways, are to be surrendered to the Security Police and to
the Security Service. Only those prisoners are excepted who
were legally sentenced to death, or were serving a sentence of
confinement prior to the announcement of these decrees. Included
in the punishable acts which endanger the security or war readi-
ness of the occupying power are those also of a political nature.
The declaration of the Higher SS and Police Leader with the
military commander in France, that he cannot answer questions
about political prisoners during Anglo-American operations in
France, includes therefore all political prisoners in the occupied
French territories seized recently, or to be seized in the near
future.

243

The future treatment of prisoners who are condemned accord-
ing to the directions of the Fuehrer Order of 7 December 1941
( OKW / Armed Forces Legal Department 1/3/4 14 n 16 Nr.165/41
Secret) , and who have no communication with the outer world, will
soon be discussed with all interested authorities.

By order:

Signed: Dr. Lehmann

Certified :

[Signed] Schoelz
O berfeldrichter [Military Judge]

TRANSLATION OF DOCUMENT D-765
PROSECUTION EXHIBIT 830

INVITATION, 2 SEPTEMBER 1944, BY HIGH COMMAND OF THE ARMED
FORCES, SIGNED BY DEFENDANT LEHMANN, TO CONFERENCE ON
TREATMENT OF ENEMY CIVILIANS IN OCCUPIED TERRITORY

Berlin W 35, 2 September 1944
Tirpitzufer 72-76

High Command of the Armed Forces

14 n 16.18 Armed Forces Legal Department (1/3) 446/44 Secret

[Stamp] Secret

Express Letter

To:

1. The Foreign Office, for Consul General Speiser.

2. The Reich Minister of Justice, for Ministerialrat von

Ammon.

3. The Reich Security Main Office, for SS Lieutenant Colonel

Huppenkoten.

4. The Reich Minister and Head of the Reich Chancellery, for

Appeal Court Judge Sommer.

5. The Head of the Party Chancellery, for Reichsamtsleiter

Kapp.

6. The Reich Leader SS, Central Office SS Court.

7. OKW/Armed Forces Operations Staff/Quartiermeister/

Admin. 1.

8. OKW/Armed Forces Operations Staff/Department Foreign

Countries.

9. Army High Command/Legal Department.

10. Navy High Command/Navy Legal Department.

11. Air Force High Command/Air Force Legal Department.

244

Subject: Criminal acts by non-German civilians in the occu-

pied territories against the security or war readi-
ness of the occupying power

Reference: Fuehrer Decree of 30 July 44 (OKW/ Armed Forces
Operations Staff/Quartiermeister 2/Admin. 1 No.
009169 Top Secret) and OKW Decree of 18 August
44 (Armed Forces Operations Staff/Quartier-
meister 2/ Admin. 1 No. 009169 Top Secret) Armed
Forces Legal Department 1/3 No. 79/44 Top Secret

According to the decrees referred to above all non-German
civilians in the occupied territories who have endangered the
security or war readiness of the occupying power by acts of
terrorism or sabotage, or by any other means, are to be handed
over to the Security Police and Security Service.

The question is whether it is necessary to issue a correspond-
ing regulation in respect of non-German civilians who were
legally sentenced before the publication of this order and have
begun to serve a term of imprisonment.

The High Command invites you to a conference on this ques-
tion on Friday, 8 September 1944, at 10 a.m., in the building of
the Reich Military Court, Berlin-Charlottenburg 5, Witzleben-
strasse 4/10, Room 106.

By ORDER:

Signed: Dr. Lehmann

Certified :

[Signed] Schoelz
O berfeldrichter [Military Judge]

215

TRANSLATION OF DOCUMENT D-767
PROSECUTION EXHIBIT 832

MEMORANDUM, 13 SEPTEMBER 1944, ON CONFERENCE CONCERN-
ING TREATMENT OF NON-GERMAN CIVILIANS IN OCCUPIED

TERRITORY

[Stamp] TOP SECRET

Local Headquarters, 13 September 1944

1 copy

Quartiermeister (Admin.2)

To 79/44 Top Secret

Subject: Criminal acts by non-German civilians in the occupied
territories against the security or war readiness of
the occupying power

Memorandum

I participated in the discussion for the purpose of gaining
information. After it had been ascertained that the “Nacht und
Nebel” (Night and Fog) Decree had become superfluous as a
result of the Terror and Sabotage Decree, the Armed Forces
Legal Department presented the attached draft No. 009169/44*
Top Secret — Armed Forces Legal Department (1/3) No. 79/44
Top Secret — of September 1944, for discussion. There were no
important differences of opinion. Mere technical questions re-
garding practical application were discussed immediately after-
wards by the people directly concerned.

According to the letter of the Reich Leader SS, it is a question
of approximately 24,000 non-German civilians who are detained
or under arrest for examination, and whose speediest transfer to
the Security Service he demands. The question that came up
during the discussion as to why this transfer to the Security
Service had become necessary at the present time, although no
inconsiderable administrative work was involved, remained un-
answered.

It was agreed that section I of the draft decree refers also to
those prisoners who have been turned over to the civil courts.

As OKW does not set any great value on passing sentence on
the trifling matters still remaining for the military courts, they
have been left for settlement by decrees to be agreed on locally.

The representative of the Foreign Office pointed out that mem-
bers of neutral countries also had been submitted to the “fog”

* Keitel’s order of 4 September 1944 {Doc. D-766, Proa. Ex. 83U) reproduced immediately
below.

246

decree by mistake, or intentionally (i.e., as accomplices), who,
according to the basic decree, should not have been affected. The
question as to what is to be done with the foreigners, and what
information is to be given to the neutral countries can, as was
stated by the representative of the Security Service, only be an-
swered in each individual case according to the state of affairs
existing at the time. The Foreign Office’s objections have not
been entirely removed by this.

[Signed] Westerkamp

TRANSLATION OF DOCUMENT D-766*
PROSECUTION EXHIBIT 834

KEITEL ORDER, 4 SEPTEMBER 1944, FURTHER IMPLEMENTING THE
TERROR AND SABOTAGE DECREE OF 30 JULY 1944, WITH INSTRUC-
TIONS CONCERNING "NIGHT AND FOG" PRISONERS

TOP SECRET

4 September 1944
30 copies — *** copy

High Command of the Armed Forces

Armed Forces/Legal Department 1/3 No. 79/44 Top Secret
Armed Forces Operations Staff /Quartiermeister 2/Admin. 1,
No. 009169/44 Top Secret

Subject: Criminal actions by non-German civilians in the occu-
pied territories against the security or war readi-
ness of the occupying power

On the strength of section II of the Fuehrer’s decree of 30 July
1944, (OKW/Armed Forces Operations Staff Quartiermeister 2/
Admin. 1, No. 009169/44, Top Secret) ( D-762 , Pros. Ex. 826)*
it is decreed in agreement with the Reich Leader SS and the
Chief of the German Police, the Reich Minister of Justice and
the Reich Minister and Chief of the Reich Chancellery —

I

Non-German civilians in the occupied territories who have been
legally sentenced by a German court for a criminal act against
the security or war readiness of the occupying power, and who
are in custody in the occupied territories or in the home area,
are to be handed over with a report of the facts to the nearest
local office of the Security Police and Security Service. Excepted

* Document reproduced earlier in this section.

247

are persons who have been legally sentenced to death for whom
the execution of the punishment has been ordered.

II

Sentenced persons, who, according to the directives of the
Fuehrer for the prosecution of criminal acts against the Reich
or the occupying power in the occupied territories, dated 7 De-
cember 1941 [Night and Fog Decree], are not allowed to have
any contact with the outer world, are to be specially identified.

III

The Chief of the Security Police and Security Service will agree
on the time for the transfer with the High Command of the
Armed Forces, the Reich Minister of Justice or the Reich Min-
ister and head of the Reich Chancellery, for their spheres of com-
petence.

The Chief of the High Command of the Armed Forces

Signed: Keitel
Certified :

[Signed] Schoelz
Oberfeldrichter [Military Judge]

Distribution :

Gestapo office, for Oberregierungsrat Kiesel, 1st copy
Reich Minister of Justice, for Ministerialrat von Ammon,
2d copy

Reich Minister and Head of the Reich Chancellery, for Judge
Sommer, 3d copy

High Command of the Army, Chief of the Army Judiciary,
4th copy

High Command of the Army/Legal Department, 5th copy
High Command of the Air Force/Air Force Legal Depart-
ment, 6th copy

High Command of the Navy/Navy Legal Department, 7th copy
Reich Leader SS, Chief SS Court, 8th copy
The SS Judge attached to the Reich Leader SS, for SS Colonel
Bender, 9th copy

The President of the Reich Military Court, 10th copy
High Command of the Armed Forces/Troops Department/
Fighting Forces, 11th copy
Commander in Chief West, 12th copy
Armed Forces Commander Netherlands, 13th copy
Commander in Chief Southwest, 14th copy
Plenipotentiary General of the German Armed Forces in Italy,
15th copy

248

Commander in Chief Southeast, 1 6th copy
Military Commander Southeast, 17th copy
Armed Forces Commander Denmark, 18th copy
Armed Forces Commander Norway, 19th copy
Foreign Office, for Ambassador Dr. Albrecht, 20th copy
Party Chancellery, for Reichsamtsleiter Kapp, 21st copy
Foreign Countries Department, 22d copy
Armed Forces Operations Staff/Quartiermeister 2, 23d copy
Armed Forces Legal Department (draft and spare copies),
24th-30th copies

EXTRACTS FROM THE TESTIMONY OF DEFENDANT LEHMANN* *

DIRECT EXAMINATION

* ***** *

Dr. von Keller (counsel for the defendant Lehmann) : I will
now turn to a new topic, the decree which was subsequently desig-
nated as the “Terrorist Decree”. Can you explain what you knew
about the origin of this terrorist decree?

Defendant Lehmann : I am afraid my knowledge of this case
is rather sketchy. That is due to the fact that this decree orig-
inated during the period in which I was still hospitalized. Accord-
ing to the documents, it originated at the beginning of the month
of July 1944, and it was only in August that I returned. Nor
do I know very much about the subsequent development of this
matter, because I had not fully recovered when I returned, and
I could only perform my duties with half my strength, and only
dealt with newly incoming matters which had resulted from the
plot of 20 July 1944, and other major political events. Matters
which were pending were dealt with by my deputy and my
officials; of course, always under my responsibility. I merely
state this to make matters plain. I know the following facts
about this development:

In the hospital I was telephoned by one of my officials, at the
beginning of July 1944, and he told me that Hitler had aimed
a new blow at the judiciary of the armed forces. He had ordered
that the jurisdiction of the armed forces over inhabitants in occu-
pied territories was finally to cease. Thereupon, I asked whether
that was already finished, and I was told that the decree had
already been issued. I requested the official to call upon me in
my hospital in Baden-Baden because that was such an important
matter that I wished to get further particulars, and that was

* Complete testimony is recorded in mimeographed transcript, 15-16, 19-20, 26-27 July 1948;

pp. 7909-8180, 8481-8582.

249

not possible by telephone without disturbances. The official called ,
upon me and told me that Field Marshal Keitel, too, had called
this matter irrevocable.

We now considered whether it was possible at all to attain any-
thing. There was only a small starting point for us. Upon the
instigation of my official, or my deputy — I don’t know who —
Field Marshal Keitel had agreed that in the decree which had
already been issued —

Judge Hale: May I interrupt? Counsel, I wish you would let
us in on the secret of what document you are speaking about.

Dr. von Keller: Your Honor, the document has not been dealt
with as yet. It will subsequently be introduced as Exhibit 823.
The first document in this complex will be 823.

A. (Continuing) I had been told that the Field Marshal had
conceded an addition to the decree already issued, to the effect
that implementation regulations were to follow. 1 It was now
possible, perhaps, by way of these implementation regulations,
to effect some improvement. From the hospital I telephoned
Field Marshal Keitel. He didn’t like it, but the matter was im-
portant enough. Keitel confirmed on the telephone that it was a
firm decision of Hitler. We have only been able to find out now,
in part, how this decision had been arrived at. It will be
proved to the Court by documents.

Q. May I now ask you to comment on Document NOKW-2576,
Prosecution Exhibit 823, book 9-K, page 79 of the English and
81 of the German?

A. It is a communication, according to the contents of which,
Hitler had ordered, on the basis of events in Copenhagen, “that
court martial proceedings against civilians in the occupied terri-
tories must be discontinued with immediate effect.” The order
was to be drafted along these lines. How this happened in par-
ticular I don’t know myself. The crucial point at any rate was
that judicial proceedings against civilians in occupied territories
was abolished by this order of Hitler.

Q. You just quoted a sentence from Exhibit 823. Will you
please now turn to page 81 of the English and 83 of the German?
That is Document 711-PS, Prosecution Exhibit 824 2 .

A. That is a memorandum dated 1 July 1944. According to
a report by the armed forces commander in Denmark, the strike
wave in Copenhagen at the time was caused by the execution of
death sentences. We now heard that was the immediate reason

1 See Document Lehmann 301, Lehmann Exhibit 268, (Dr. Huelle’s affidavit), above in
section D 2, for further discussion of this subject.

2 Document reproduced above in this section.

250

for Hitler to issue the order that the jurisdiction of the armed
forces was to be completely abolished.

Here again it can be seen how such orders originated. If it
had been an armed forces court which had imposed these death
sentences, I could have understood it, but they were sentences
passed by an SS and Police court in Copenhagen. Nonetheless,
our jurisdiction was prohibited for this reason. It was only an
excuse, and not the intrinsic reason; the intrinsic reason was to
be found in the distrust of our justice.

Q. Now, how did this matter of the order itself develop?

A. I cannot state this from memory, nor do I find in the
documents any sufficient aid to my own memory. I was not in
Berlin at the time. All I know is that we endeavored, by way
of implementation regulations, to mitigate Hitler's original order.
How this happened in detail I do not know any longer, or didn't
know at all. A certain success must have been attained because
the original order of Hitler, as I have related to the Tribunal,
was to the effect that the jurisdiction of the armed forces was
to be completely eliminated, that is jurisdiction over indigenous
population. Hitler's order which I find here as the conclusion of
this matter, Document D-762, Prosecution Exhibit 826,* is an
order dated 30 July 1944. It contains a modification of the
original order because it excludes jurisdiction only in cases of
criminal acts against the German armed forces, SS and Police,
but not in the case of other offenses committed by the inhabitants
of the country.

A further regulation provides that followers, women and chil-
dren are to be spared. These apparently are the mitigations and
modifications of the original decree which had been secured in the
course of further negotiations in Berlin. To what extent this was
due to our suggestions, I cannot state, because I had not re-
turned to office when this order was signed.

Q. Now, when did you return to Berlin and what happened
thereafter?

A. I returned to my office after the plot of 20 July, although
I had not been completely restored, because I anticipated that
new consequences would flow from this for Wehrmacht juris-
diction.

Q. You mean the plot?

A. I mean the plot on Hitler's life.

Q. You mean the one on 20 July?

A. That is right, the anti-Hitler plot on 20 July 1944 and my
anticipations were fully confirmed. I will revert to this. The

♦ Ibid.

893964—51 17

251

atmosphere in Berlin was an atmosphere of lunacy and I can
well imagine that nothing could be done against Hitler’s will in
this atmosphere in such a matter.

Q. To what extent had the atmosphere and the position changed
as regards the powers of command?

A. In Berlin I found a completely changed situation. Himmler
had become Commander in Chief of the Replacement Army subse-
quent to the anti-Hitler plot, and Hitler had charged him with
the detection of all matters in connection with the plot. That had
vested Himmler with such power as he had not possessed before in
spite of his very strong position and he was the very man to
exploit it.

Q. What demands did Himmler make?

A. With respect to this decree, he made various kinds of de-
mands. Some office under Himmler must have noticed that the
decree dated 30 July 1944, that is, Prosecution Exhibit 826, was
not identical with the original directive by Hitler because parts
of the armed forces jurisdiction had been preserved. Himmler
now addressed a communication to Field Marshal Keitel in which
he categorically asked for Hitler’s original will to be expressed
in a supplementary decree, and that was the reason for the decree
which will be found by the Tribunal in Document D-763, Prose-
cution Exhibit 828. It is a decree of Keitel dated 18 August 1944.
This decree restores the original order of Hitler dated 1 July
1944; even if an offense by a national of an occupied country did
not constitute an act of violence against the occupying power,
armed forces jurisdiction was to be abolished.

I can approximately recall this, because I still remember that
Field Marshal Keitel was most excited about this letter of protest
by Himmler, and he ordered this matter to be settled on the same
day. In this connection I would like to point out that the imple-
mentation of Hitler’s original order had been delayed until the
middle of August, because Hitler’s order about the final transfer
of the matters to the police was only distributed with a covering
letter dated 18 August. Thus, we had succeeded in delaying
this decree for a long time, and as this whole development took
place in a period in which the evacuation of France was pro-
ceeding apace, and as the distribution of the order took weeks,
owing to the postal conditions at the time, it may well be said
that the new decree never became seriously effective for France.
A witness will inform the Tribunal about this, a witness from
France.

Q. Did Himmler now agree to this new adjustment, I mean this
adjustment which had been effected by the communication dated
18 August?

252

A. No. Because he concluded from Hitler’s order of 1 July,
that he, Himmler, and he alone, was to have jurisdiction over
foreign nationals in Germany, and he now demanded that such
persons of foreign nationality as were imprisoned by the armed
forces or the civil courts were to be put at his disposal for work.
That was a new demand for us. We prepared a short memoran-
dum in which we pointed out that it was a completely incompre-
hensible measure to effect such a reorganization at this juncture.
We were less concerned by this, but the Ministry of Justice was
affected to a considerable extent.

Q. Why were you not concerned?

A. Because only a few such aliens were detained in the penal
institutions of the army ; but now a new picture resulted. I have
already related to the Tribunal that on 20 July 1944 Himmler
became commander of the Replacement Army, and the execution
of sentences passed by the armed forces was dealt with by the
Replacement Army. As far as prisoners of the armed forces were
concerned, Himmler was himself competent, and I used this as a
reason against his demand, by stating that I could understand
his demand even less now, seeing that he had already got the
people. Thereupon Field Marshal Keitel replied to me : “As you
state quite properly, it is not merely a matter of a formal de-
tachment from the armed forces. In point of fact, all these
inmates of the prisons of the armed forces are already subject
to the jurisdiction of Himmler. All this has been conceded by
Hitler and so ordered, and these orders are to be carried out.”
Thereupon, although we were the least to be affected, as I have
stated, we called the departments concerned for a consultation.
This is shown by Document D-765, Prosecution Exhibit 830,*
a communication dated 2 September 1944. All agencies concerned
had been requested to participate in a conference, the subject
of which was to be this new demand, of which we made no
mention in the communication itself in order not to commit the
departments concerned at the outset.

Q. The invitation is contained in the last paragraph of this
communication.

A. This conference took place, but I didn’t attend it. It had
been convened for 8 September 1944. On that day I returned to
the hospital in Baden-Baden because I had suffered a relapse, and
the conference was conducted by my deputy, a Ministerialrat.
From this fact alone it is evident that it was merely a technical
conference in which no decisions were to be made, for otherwise
a civil servant holding the rank of a Ministerialrat could not
have dealt with this matter. Everything had been fixed already

* Ibid.

253

by Hitler's orders, and by the orders of Himmler and Keitel.
This conference, as I heard upon my return, merely concerned
the transfer for labor allocation [of “night and fog" prisoners] .

Q. Did you subsequently hear anything more about the con-
ference?

A. Yes. I merely learned this fact, that we had made an
attempt to emphasize the technical difficulties, that however the
police rigidly stuck to their purpose, and presented the draft
which Hitler had accepted to be redeemed by us. It was known
that Himmler was seeking labor everywhere in Germany for his
work program. That was known to us through other occurrences
too.

Q. Was the legal aspect of this decree under international law
referred to subsequently?

A. No, as it merely concerned a shifting of competency, which
we all regarded as completely fatuous and inexpedient, but which
meant nothing but a change of the place of work, as far as I
know no such objections were raised by any of the participants.

* * * * * * *

E. Deportation and Enslavement of Civilians
I. INTRODUCTION

In count three of the indictment (pars. 59, 62, and 64 through
67), all of the defendants were charged with criminal participa-
tion in the slave labor program of the Third Reich. Contem-
poraneous documents submitted below in connection with these
charges (section 2) are followed by extracts from the testimony
of the defense witnesses Westerkamp and Heidkaemper (sec-
tion 3).

254

2. CONTEMPORANEOUS DOCUMENTS

PARTIAL TRANSLATION OF DOCUMENT NOKW-3485*
PROSECUTION REBUTTAL EXHIBIT 9

EXTRACT FROM DIRECTIVE OF OKW, 8 MAY 1941, CONCERNING
ECONOMIC ORGANIZATION TO BE SET UP IN "BARBAROSSA" AREA

EXTRACT FROM OKW / ECONOMIC ARMAMENT

OFFICE

Staff la 42/41 Top Secret, Matter for Chiefs, dated 8 May 1941
Enclosure 1

To OKW/Armed Forces Operations Staff/L IV Quartiermeister
No. 44560/41 Top Secret

Matter for Chiefs 19th copy

Composition and tasks of the Economic Organization to he set
up in the “Barbarossa” area

The Fuehrer has placed the Reich Marshal in charge of the
coordinated management of economy in the area of operations and
in the political administration territories. The Reich Marshal
has assigned to this task an economic directing staff, for which
the Chief of the Economic Armament Office is responsible.

The structure and presumable activity of the economic organiza-
tion will be as follows:

Composition of the Economic Organization —

Reich Marshal, Economic Direction Staff East,

(Chief of Economic Armament Office in charge)
Economic Staff, (Lieutenant General of the Air Force
Schubert)

Economic Inspectorates

Economic Units [Wirtschaffs Kommandos]

Groups IV Economic, with the Feldkommandanturen
Liaison Officer of the Economic Armament Office as Section
IV — Economics of army headquarters [AOK]

The economic offices subordinate to the Economic Staff Schubert
will, as far as they have their field of activity within the area of
operations , be the military subordinates of the command authori-
ties of the army .

The Reich Marshal will give his orders to the Economic Staff
Schubert via the Economic Direction Staff East ; the former
[Economic Staff Schubert] will execute them through military

* Additional parts of this Document are contained above in section VI D 3 b volume X, of
this series.

255

command channels via the Army High Command/ General-
Quartiermeister , as far as it is required that they be passed on
to the troops through command channels or when it is necessary
for the holder of the executive power to intervene.

Purely technical economic orders will be given directly to the
subordinated economic offices through [economic] service chan-
nels, while the military command authorities concerned will be
informed simultaneously.

The economic offices set up in the area of operations are at the
disposal of the command authorities of the army for the purpose
of providing army supplies.

*******

PARTIAL TRANSLATION OF DOCUMENT NOKW-2460
PROSECUTION EXHIBIT 436

EXTRACTS FROM MONTHLY REPORT FOR MAY 1942 FROM ECO-
NOMIC INSPECTORATE NORTH TO ARMY GROUP AREA NORTH
CONCERNING THE DISPATCH OF CONSCRIPTED LABOR TO REICH

Commander, Army Group Area North
Enclosures to War Diary Quartiermeister

Monthly Reports, Economic Inspectorate North, from 1 March
1942 to 31 August 1942

Economic Inspectorate North
Group Leader/M/ I/Ia
Registry No. 637/42 Secret

[Handwritten]

461/42 Secret
14/6 [Initials] Ke

Back to Chief of Staff, to be submitted again

Ps Kov, 6 June 1942

[Stamp]

Commander, Army Group Area North
Received: 10 June 1942
Action: Quartiermeister II
Registry No. 1372/42 Secret

Monthly report for the period from 1-31 May 1942
1. Population

a. Attitude of the population

*******

256

The rural population everywhere shows commendable industry
with regard to the spring cultivation, working from early in the
morning till late at night. This active participation exceeds our
expectations by far and allows the conclusion to be drawn that
at least the rural population evinces a positive attitude which in
turn gives rise to the hope for a favorable harvest. This activity
of the rural population can be regarded as the first positive out-
come of the new agrarian regulations. Opposed to this there is a
certain dissatisfaction, which seems to become evident in the area
of Ostrov, here and there, with the more or less compulsory re-
cruitment and deportation of Russian laborers to the Reich ; this
dissatisfaction is at present of minor importance, but should
be closely watched all the time.

*******
4. Labor allocation and wage policy
*******

On 16 May 1942, a meeting of all leaders of recruitment com-
missions under the chairmanship of Economic Unit Commander,
Lieutenant Colonel Becker, took place at Pskov. At this meet-
ing it was unanimously agreed that the recruiting drive could
not be improved any further. Army Group and Inspectorate
therefore agreed to the proposals of the recruiting commission
to restrict the number of workers to be deported to the follow-
ing quotas :

In the area of Army Command 16 6,000

In the area of Army Command 18 4,000

In the area of Army Group Area North 4,500

When these figures have been reached, about 50,000 workers
will have been dispatched to Germany, and the figure originally
aimed at will have been surpassed by about 70 percent.

Further transports will be impossible without seriously im-
pairing the needs of the troops, according to the opinion of army
group, with which all these present concurred. A detailed survey
will be given on the carrying out of the recruitment campaign
for Germany in the report for the month of June.
*******

a. Labor Allocation in former Russian territory
The tasks have not essentially changed. As before, the follow-
ing must be taken first into consideration :

(1) Deportation of workers to Germany

(2) Renewed demands for “Panje” [horse-drawn wagon]
drivers

(3) Recruitment of necessary workers for road repairs and,
in addition, for repair of numerous bridges which have been

257

destroyed, or badly damaged by ice floes, as well as for large-
scale construction work above ground.

These requirements could not be met to a full extent.

The commander of the rear area has issued a new decree as
well as a directive concerning labor allocation. The regulations
concerning the carrying out of conscription, the prohibiting of
demobilization, etc., have not been essentially broadened, so that
now vast areas of the country can be drawn on also.

* ***** *

b. Labor Allocation for Germany . During the month of May,
15 trainloads carrying roughly 15,000 persons, were dispatched
from the area of the Economic Inspectorate North.

Until 24 May 1942, there have been dispatched :

From the area of Army Command 16 11,149 persons

From the area of Army Command 18 11,349 persons

From the area of Army Group Area North 16,424 persons

38,922

Added to the transports from all three recruiting areas men-
tioned earlier, the number of workers dispatched to the Reich
up to 31 May 1942 amounts to about 42,000.

No further prisoners of war were dispatched during the month
of May, and further transports are not to be expected unless
the military position in Sector North is changed.

* * * * * * *

Charged with taking over of Command
[M.d.w.d.g.b.]

Signed: Becker
Lieutenant Colonel
Certified True Copy:
[Signed] Franke

Captain

258

PARTIAL TRANSLATION OF DOCUMENT NOKW-2393
PROSECUTION EXHIBIT 440

EXTRACT FROM MONTHLY REPORT OF ECONOMIC INSPECTORATE
NORTH FOR JULY 1942 CONCERNING TRANSPORTATION OF
CIVILIANS TO THE REICH FOR LABOR (SAUCKEL PLAN)

[Handwritten] VII 568/42 Secret

SECRET

Economic Inspectorate North
Direction Group/M *** I d
Diary Nr. 836/42 Secret

Pskov, 6 August 1942

[Stamp] Received
Quartiermeister, 11 August 1942

[Handwritten]

M.R. Department VII

Monthly Report for the period from 1 July to 31 July 19^2

* * * * * * Jk

b. Labor Allocation for Germany — Several transports were still
carried out for the Sauckel Plan in July, and 50,725 persons alto-
gether have been transported into the Reich so far ; 2 transports
from the Demyansk basin, with a total of about 1,000 workers, are
still to be expected. It is impossible to remove any more; for it
is clear even now that the removal of these 51,000 persons from
a region which is depopulated to such a great extent, makes it
extremely difficult to carry out the work which must be done
here for the troops.

*******

Charged with taking over of Command
[M.d.w.d.g.b.]

[Signed] Becker

Colonel

259

TRANSLATION OF DOCUMENT VON KUECHLER 1 19
VON KUECHLER DEFENSE EXHIBIT 119

DECREE OF THE FUEHRER, 30 SEPTEMBER 1942, ON THE EXECUTION
OF THE DECREE CONCERNING A PLENIPOTENTIARY GENERAL FOR
THE ALLOCATION OF LABOR

I herewith authorize the Plenipotentiary General for the Allo-
cation of Labor, Reich Governor and Gauleiter Fritz Sauckel, to
take all necessary measures for the execution of my decree con-
cerning a Plenipotentiary General for the Allocation of Labor,
dated 21 March 1942 (Reich Law Gazette [part] I, page 179, ac-
cording to his own judgment in the greater German Reich includ-
ing the Protectorate as well as in the Government General and in
the occupied territories; measures which will safeguard under all
circumstances the regulated allocation of labor for the German
war economy. For this purpose he may appoint commissioners in
the offices of the military and civilian administration. These are
subordinated directly to the Plenipotentiary General for the Allo-
cation of Labor. In order to carry out their tasks, they are en-
titled to issue directions to the competent military and civilian
authorities in charge of the labor allocation and wage policy.

More detailed instructions will be issued by the Plenipotentiary
General for the Allocation of Labor.

Fuehrer Headquarters, 30 September 1942

The Fuehrer
[Signed] Adolf Hitler

The Reich Minister and Chief of the Reich Chancellery

[Signed] Dr. Lammers

The Chief of the High Command of the Armed Forces

[Signed] KEITEL

260

PARTIAL TRANSLATION OF DOCUMENT NOKW-2341
PROSECUTION EXHIBIT 444

REPORT FROM COMMANDER ARMY REAR AREA 590, GROUP VII,
(MILITARY ADMINISTRATION), TO 3d PANZER ARMY, 29 NOVEMBER
1942, CONCERNING RECRUITMENT AND USE OF CIVILIANS FOR

LABOR

[Handwritten] Qu 2 564/42 Top Secret

Command Post, 29 November 1942
Commander of Army Rear Area 590

Group VII (Military Administration) File Reference I 15/42
la 134/42 Top Secret

[Stamp] Top Secret
[Handwritten] Circulation for official notice
la
I T
IV a

and return to
Quartiermeister 2
19 December
Army Group
Area North

[Stamp]

3d Panzer Army/Oberquartiermeister Section
Received: 2 December 1942
Secret Top Secret
[Initials] No. 4130/42

[Stamp] Top Secret

[Stamp]

Top Secret No. 8088/42
3d Panzer Army
Received : 1 December 1942
Dept. Oberquartiermeister

To : 3d Panzer Army, Oberquartiermeister 2

Subject: Employment of prisoners of war and civilians

Reference: 3d Panzer Army Ia/Oberquartiermeister 2 No. 4566/
42 Top Secret, dated 10 October 1942
In accordance with Section 21 of the order referred to, the
following report is herewith submitted concerning experiences
gained in connection with the measures ordered.
*******

261

A conclusive picture of the tasks and of the distribution of
available labor forces is presented by the list below made by the
Ortskommandatur 1/292 :

Serial No. Assignment

Men

Women

*

* * * *

*

*

9.

Women for the Reich

100

10.

Men and women as a detachment

quartered in barracks

200

200

11.

Men and women, field railroad

machine division 5, Vyazma

50

50

12.

Men, Vyazma Supply Sector

300

13.

Commander of army rear area

worker detachment

100

60

*

* * * *

*

*

18.

Field fortification

construction

956

2199

*

* * * *

*

*

b.

Recruitment of the civilian population

The recruitment poster contemplated in paragraph II of the
reference instruction has not been delivered. The workers could
not be recruited on a voluntary basis. In contrast to the summer
months, practically nobody is volunteering for work in Germany
any more.

*******

Five hundred male and 500 female workers were conscripted at
the time, as ordered in paragraph 18 of the reference instruction.
This conscription, however, was superseded by the subsequent
orders concerning the formation of transports of labor detach-
ments. The following must be said about the organizing of these
transports.

Nowhere was there any desire or inclination for this labor
assignment; indeed, sometimes it even occurred that men wept
when they were being shipped away. Almost all the workers
had literally to be dragged away. This caused very grave difficul-
ties for the Ortskommandanturen, because all the transports had
to be assembled at very short notice and almost simultaneously.
There were not always sufficient forces (military police, regular
police) to bring the workers from remote villages. Those who
were brought, however, sometimes proved to be unfit for work.
There was no suitable place to accommodate those who were fit
to be sent away — a place which would have made guarding easy
until they could be shipped away. The workers, however, had to

262

be closely guarded at all times, otherwise, they would have run
away.

*******

[Illegible signature]

Major General

PARTIAL TRANSLATION OF DOCUMENT NOKW-2351
PROSECUTION EXHIBIT 458

ADMINISTRATIVE ORDERS FROM 263d INFANTRY DIVISION TO
ORTSKOMMANDANTUREN, 30 MARCH 1943, CONCERNING USE OF
CIVILIANS FOR BUILDING FORTIFICATIONS

30 March 1943

263d Infantry Division
Section Ib/Z

Administrative Orders for Ortskommandanturen No. U

1. Utilization of the civilian population as labor

a. Fortification of positions — The consolidation of the position
is the first and supreme order. All other work projects even
the most urgent, must give way to this.

The use of civilian workers for the construction of positions
will help us save blood.

The number of civilian workers formed into labor columns for
fortification work has decreased through loss of workers, due to
sickness or unfitness for work, to such an extent that the General
has ordered immediate replenishment. For this purpose, the
Ortskommandanten, in pursuance of the ordered registration (Ad-
ministrative Order No. 3, par. la), will submit reports on the
utilization of the civilian for labor (example, see end. No. 3).
Deadline for submission of reports to Section I. Ib/Z: 5 April
19 US.

The local population in the territory of Section R, in pursuance
of Order 263d Infantry Division la No. 407/43, secret, dated
28 March 1943, will be drafted by order of the sector commander
as auxiliary labor for completing the fortification of the villages
as strong points.

*******

In view of this multiplicity of requirements it is obvious that
the amount of civilian labor available must be exhausted to the
last man and utilized properly. Children under 14 years of age
and other civilians not fit for full employment must be assigned
to lighter kinds of work, such as keeping the villages clean, re-

263

moval of waste material, collecting stones from the fields —
primarily those with winter crops during frost periods, or after
the seeds have dried. The stones must be stacked in piles along
the roadsides to be picked up.

No women under 45 years fit for work must be used as laun-
dresses, or charwomen, or for work with field kitchens, etc.

For the care of infants whose mothers are employed in work,
the heads of communities and the village elders are to be held
responsible that persons unfit for work are made available for
supervision (setting up of kindergartens).

A working day of 12 hours will be in force for the civilian
population.

* * * * * * *

In future any Ortskommandanten who violate these orders will
be called to account.

*******

PARTIAL TRANSLATION OF DOCUMENT NOKW-2IOO
PROSECUTION EXHIBIT 471

ORDER FROM XLIII ARMY CORPS HEADOUARTERS TO SUBORDI-
NATE UNITS, 2 JUNE 1943, CONCERNING DRAFTING OF ABLE-BODIED
POPULATION FOR LABOR

[Stamp] TOP SECRET

[Handwritten] la

Corps Headquarters, XLIII Army Corps

Department Ia/Ic/Quartiermeister No. 237/43 (1132) Top Secret

Field Headquarters, 2 June 1943
11 copies — 11th copy

Subject: The drafting of the able-bodied population and those fit
for work for labor allocation

1. The great need of labor for the building of field fortifications
and roads renders it necessary to draft by force male and female
labor from the rural communities of the Corps Rear Area, which
is a territory under partisan influence, and, as such, drops out
completely as far as the food economy is concerned.

Simultaneously with this operation the cattle and horses which
are not essential for the provisioning of the section of the popu-
lation remaining behind, are to be taken into regions occupied
by us.

264

2. The coercive measures shall first of all be carried out in the
rural communities of Shalachovo, Denisova, Timonovo, Novava
(Jurovo), and Gorka (Berezno Lake).

8. Chief of the operation — Commander of Corps Rear Area,
Major Zutt. For this purpose the following units will be placed
under his command — Cossack Battalion 443, 3d Co., Panzer Recon-
naissance Battalion 120.

A. Particulars for execution [ of operation ]
*******

It is of the greatest importance from the start of the occupation
of the above-listed rural communities to spread propaganda by
word of mouth to the effect that this occupation is a permanent
one. The Cossack Battalion 443 is also to be instructed corre-
spondingly. The population will then come out from its hiding
place and can then be seized.

* ***** *

10. Security regulations

a . The drafted labor forces will attempt to evade the labor
allocation with every means at their disposal, by fleeing into the
woods or from the transport trains, as the case may be. For
this reason strong contingents should be provided for guarding.
I [Bn.] /1st Brandenburg Regiment is in readiness to support
with two companies the seizure operation on X-day upon demand
of the Commander of Corps Rear Area for example, by strengthen-
ing the “Erfassungskommandos” [seizure detachments] .

b. All men and women are to be instructed that they will be
shot at when attempting to flee. Reason — only partisan adherents
flee; they undergo corresponding treatment.

c. The labor camps with the divisions must be surrounded by
wire and remain under constant supervision. Marching to and
from the place of work must take place in closed ranks and under
German supervision. Checking by counting!
*******

As Deputy
[Illegible signature]

Major General

*******

265

PARTIAL TRANSLATION OF DOCUMENT NOKW-2340
PROSECUTION EXHIBIT 484

ORDER FROM 3d PANZER ARMY TO SUBORDINATE UNITS, 19 JULY
1943, CONCERNING DRAFTING OF EASTERN WORKERS FOR LABOR
IN THE REICH AND LABOR DRAFT PROCLAMATION

[Stamp] SECRET

Sd Panzer Army

Oberquartiermeister/Qu.2 No. 5377/43 Secret

[Handwritten] Activity Report 11

Army Headquarters, 19 July 1943

Subject: Labor Allocation Reich, Drafting of age group 1925

Reference: 1. 3d Panzer Army/Oberquartiermeister/Economy
Officer/VII/Qu.2 No. 4602/43 Secret, dated 18

June 1943;

2. 3d Panzer Army/Oberquartiermeister/Qu.2 No.
5305/43 Secret, dated 16 July 1943.

To be kept absolutely secret up to 2U July inclusive (also the fact
of the age group 1925 being drafted)

Pursuant to Article 1, paragraph 2, of the regulation of the
Army High Command relative to compulsory labor service and
labor allocation in the operational area of the newly Occupied
Eastern Territories, and to the pertinent directives issued by
Army Group Center, it is ordered:
*******
III. Procedure

1. Beginning 3 August 1943, a transport train with eastern
workers will be dispatched each Tuesday and Friday from the
army area to the Reich. Entraining stations — Rudnya, Vitebsk,
and Polotsk.

*******

For the Panzer Army Command

The Chief of the General Staff

Signed: Heidkaemper

Certified :

[Signed] Westerkamp
First Lieutenant and Quartiermeister 2

For distribution (see draft)

266

Enclosure 2 to 3d Panzer Army

Oberquartiermeister Qu. 2 No. 5377/43 Secret, dated 19 July 1943

Proclamation concerning labor utilization in the Reich

Pursuant to Article 1, paragraph 2, of the decree relative to
compulsory labor and labor allocation in the operational area
of the newly Occupied Eastern Territories, it is ordered:

Article 1 — All persons of the age group 1925 have to serve their
compulsory labor terms in the Reich territory, with the exception
of those who are employed as voluntary auxiliaries, with in-
digenous units or with the police.

Article 2 — No exemptions for reasons of indispensability from
industrial plants, offices, troop units, etc., in which persons of
the age group 1925 are employed, will be granted in any case.
* * * * * * *

Article 5 — Whoever tries to evade his service obligation will be
severely punished. The same also applies to persons who harbor
anyone liable to service, or in any other way help him (her) in
his attempts to evade the service obligation, or strengthen him
in his intent to evade his duty. Moreover, in place of a person
liable for service who has not appeared, his next of kin may be
drafted for labor allocation in the Reich regardless of personal
circumstances.

* *

1 August 1943

* * * *
[Illegible initial]

The German Commander in Chief

PARTIAL TRANSLATION OF DOCUMENT NOKW-2336
PROSECUTION EXHIBIT 491

SUPPLEMENT TO ACTIVITY REPORT OF 3d PANZER ARMY, 4 AUGUST
1943, CONCERNING LABOR ALLOCATION OF EASTERN CIVILIAN

POPULATION

SUPPLEMENT TO ACTIVITY REPORT 3d PANZER ARMY,
OBERQUARTIERMEISTER/QU.2 FROM 1 JULY 19U3 TO
31 DECEMBER 19 U3

4 August 1943

Labor allocation of the civilian population
General reference is made to last month’s statements concern-
ing this matter. The newly ordered drafting of the 1925 class

893964—51 18

267

and, just now, also that of the 1926 class for the Reich is being
started. This resulted in a partially not insignificant uneasiness
among the population, according to experiences gained ; however,
the situation will be kept under control, thanks to intensive prep-
aration by propaganda and organization. The first batches of
eastern workers for the Reich have been assigned to the assembly
camps without the use of unpleasant measures. In some areas,
about 50 percent of the persons liable to the labor draft have
fled, possibly joining the guerrillas. The attitude of the remain-
ing ones in the assembly camps is not bad. Due to the good care
and organization, the army anticipates favorable results from its
propaganda, which will facilitate the continuation of the drafting
of this age group. A deciding factor will be that the reports from
the Reich concerning the treatment of the eastern workers there
will also sound favorable. If the contrary should be the case,
a successful continuation of this drafting cannot be expected.

[Signed] Westerkamp
First Lieutenant and Qu. 2

PARTIAL TRANSLATION OF DOCUMENT NOKW-2570
PROSECUTION EXHIBIT 492

EXTRACTS FROM WAR DIARY, 13 JULY-18 SEPTEMBER 1943, AND
APPENDIX TO WAR DIARY, XLIII ARMY CORPS, CONCERNING
LABOR ALLOCATION OF RUSSIAN CIVILIAN POPULATION

War Diary, No.: ***

XLIII Army Corps/Quartiermeister — Started 13 July 1943, con-
cluded 18 September 1943.

XLIII Army Corps was subordinate to the 3d Panzer Army
from 13 July 1943 to 18 September 1943.

The War Diary was kept from 13 July 1943 to 18 September
1943 by:

[Signed] Lieutenant Stapfner

*******
[Handwritten] 12 August 1943

*** Military Administrative Counsellor Behnisch of Economy
Command Vitebsk, Labor Group, arrives for a discussion con-
cerning the recruitment of age groups 1925-1926 for labor allo-
cation in the Reich. Altogether the following numbers are re-
ported as belonging to age groups :

268

1925

and

1926

District Pustoshka 935 1072

83d Infantry Division 272 290

205th Infantry Division 240 (1447) 307 (1669)

A total of 3106 [sic].

The corps area is to furnish one hundred people for each
transport (twice weekly) ; acceptance in Pustoshka on 14, 17, 21,

24, and 28 August. One soldier may be assigned as escort for
each twenty Russians (subsequent furlough). Possible delousing
in Reval. Transport if possible by army supply. Return trans-
port of unfit will be supervised by labor office.
*******

Appendix to War Diary, 10 August 1943

2. Conference of Corps Economy Leaders and Division Econ-
omy Leaders with the Army Economy Leader of 3d Panzer Army
on 10 August 1943.

*******

Labor allocation of the civilian population

The conscription of age groups 1925-1926 for the Reich had to
take place because volunteers did not suffice. The gaps due to
this will have to be filled by measures of the corps. As a matter
of principle no releases will be granted (perhaps temporarily
to turn over the work).

Recruitment of both age groups must proceed rapidly (2,000
weekly) .

It must become a basic principle in the performance of work
that not all projects are to be carried out simultaneously (order
of priority).

The furnishing of labor forces is the affair of the command
authorities. These are responsible for bringing them to the
rear to the assembly camps. Those found unfit during examina-
tion will be brought back.

The Russians are to receive an impression of German order and
cleanliness in the camps. The transport of workers to the Reich
is not a deportation. The proclamation of the army had a good
effect.

Every Tuesday and Friday a transport with about a thousand
workers leaves Vitebsk for the Reich. The workers must arrive
at the assembly camp two days previous to this (on 15, 18, 22,

25, and 29 August). One hundred workers are to be sent each
time from the area of the XLIII Army Corps.
*******

269

PARTIAL TRANSLATION OF DOCUMENT NOKW-3475
PROSECUTION REBUTTAL EXHIBIT 23

ORDERS FROM ARMY GROUP NORTH TO CORPS COMMAND TIE-
MAN N, 19 SEPTEMBER 1943, AND 30 SEPTEMBER 1943, AND ENCLOSED
ORDER FROM HIGH COMMAND OF THE ARMY, 12 SEPTEMBER 1943,
CONCERNING PROCUREMENT OF LABOR

[Handwritten] 25/43

[Handwritten] War Diary

[Stamp] TOP SECRET

Headquarters, 19 September 1943

High Command Army Group North
The Oberquartiermeister
Quartiermeister 2 No. 1927/43 Top Secret

Reference: High Command Army/General Staff Army/General-
quartiermeister, Dept. War Administration. No.
11/1434/43 Top Secret, dated 12 September 1943

Subject: Procurement of labor for the execution of Fuehrer

Order No. 10

1 enclosure

To: Corps Command Tiemann

For information we enclose the “Special regulations for the
procurement of labor for the execution of Fuehrer Order No. 10”
(reference above).

In this connection Army Group North orders the following:

Re section I — The procurement of the labor and its alloca-
tion to the employers will be affected by Army Group North/O ber-
quartiermeister in cooperation with Economic Inspectorate North.
*******

Re section II, 2a — The making available of prisoners of war
fit for labor from the area of operation refers only to prisoners
of war of the operations “Steiger” and “Hauer”.

Re section II, 2c — The labor offices have orders to retain the
male members of the age groups 1925-1926 and 1927 upon their
arrival in the reception camps for transport to the Reich.
*******
For the High Command of Army Group North

The Oberquartiermeister

[Signed] BUCHER

Distribution: (Contained in draft)

270

Copy

19 copies of copy — 11th copy of copy

Headquarters, High Command Army, 12 September 1943

40 copies — 4th copy

High Command Army

General Staff Army/Generalquartiermeister
Dept. War Administration
No. II/l 434/43 Top Secret

[Stamp] TOP SECRET

Special regulations for the procurement of labor for the execution
of Fuehrer Order No. 10

In agreement with the Plenipotentiary General for the Allo-
cation of Labor, the following orders are issued:

I. The procurement of labor and its allocation to the employers
is to be effected by the army groups for their areas in coopera-
tion with the delegates of the Plenipotentiary General for Labor
and the competent economic offices.

II. As regards the procurement of labor, the following is
ordered :

1. The following are primarily available to the army groups
for allocation :

a. The population of the territory which is fit for work, espe-
cially the population of the zones enumerated in High Command
Army/General Staff Army/Operations Dept. I, No. 430 585/43,
Top Secret, Matter for Chiefs, dated 4 September 1943, section 4
(40 kilometers east, 20 kilometers west).

b. Persons fit for work, in the reception camps and reception
regions, who are drawn from the population of the evacuated
territories, and the territories still to be evacuated, to the extent
that they are not suitable for labor allocation to the Reich.

c. Parts of the labor forces suitable for allocation to the
Reich, if and when the forces enumerated under a and b do not
suffice. (Exempted are individuals belonging to the age groups
1925-1926 and 1927, which are being conscripted now.)

2. Furthermore the following persons are to be deported for
utilization in the Reich:

a . Prisoners of war from the area of operations, who are fit for
work. This means that the operations “Steiger” and “Hauer”
are being carried on according to orders. Also to be deported
are the prisoners of war of the operation “Atlantik”, who,
although not fit for labor, are fit to be transported and to be
conditioned for labor by sufficient nourishment.

271

b. The new contingent of prisoners of war.

c. The age groups 1925, 1926, and 1927 being conscripted now
in the area of operations.

d. Persons in the reception camps and reception regions fit for
labor allocation in the Reich, who can be drawn from the popu-
lation of the evacuated territories and the territories still to be
evacuated, to the extent that their allocation is not required in
accordance with Section 1 c, for the execution of Fuehrer Order
No. 10.

The personnel of plants which are being transferred are to be
transported to their new place of allocation as a group and in
cooperation with the competent agency who requires them.
*******

IV. The army groups will report to the General Staff Army/
Generalquartiermeister.

*******

2. Regularly — The prisoners of war turned over for operations
"Steiger”, “Hauer”, and "Atlantik”, as hitherto.

In view of the serious situation of the entire labor allocation
question, every employer requiring labor is responsible for the
extent of his requisition. The working capacity of the laborers
is to be increased with all means, and to be exploited to the
fullest extent. All measures must be pushed forward with the
greatest urgency.

By order:

Signed : Wagner
Certified true copy :
[Illegible signature]

Major

[Handwritten] 101/48 Top Secret
[Stamp]

Received: 1 October 1943

Dealt with: la

TOP SECRET

[Handwritten] War Diary
Dealt with: R la

Headquarters, 30 September 1943
19 copies — 9th copy

High Command
Army Group North

Ia/Oberquartiermeister/Qu. 2 No. 2203/43 Top Secret

272

Reference: High Command Army Group North/Oberquartier-
meister/Qu. 2 No. 1927/43 Top Secret, dated 19
September 1943

Subject: Procurement of labor for the execution of Fuehrer

Order No. 10

To: Corps Command, Tiemann

I. The construction of the Panther position requires 80,000
civilian laborers. The procurement of these labor forces is the
most important and most urgent task, a task to which all other
operations, including clearing and evacuation, have to yield
priority. Only by the sternest action in recruiting, and the most
ruthless procedure in making available dispensable laborers, can
the labor requirements be met. The armies and the Commander
of Army Group Area North are within their spheres responsible
for the execution of the measures as ordered. All suitable mili-
tary aid is to be provided for the economic agencies charged
with the procurement of the civilian manpower. All of the
labor procured in accordance with section II is to be kept available
for the construction of the Panther line exclusively.

II. In view of the increase of the need for labor forces, the
following supplementary orders are issued:

1. The local population living within a zone of at least 10 kilo-
meters at either side of the line is without restriction to be
available for labor allocation. Demands will be made by Higher
Engineer Commander 3 to the competent employment offices
direct.

2. In the Panther zone east, all families with 50 percent fitness
for labor are to be registered and recruited. The supplying of
these labor forces to Higher Engineer Commander 3 will be
effected by the commander of Army Group Area North in co-
operation with the competent Economic Command, Group Labor.

3. In the remainder of the army group area (the old Russian
territory) the labor forces and families fit for labor are to be
recruited on the injunctions of the economic commands to the
districts and in the course of the evacuation.

4. In the army group areas the recruiting of families fit for
labor is to be effected in the course of the evacuation. For this
purpose it will be necessary to segregate the persons fit for labor
already in the army reception camps and to report them to the
Economic Inspectorate North, Chief Group Labor. The com-
mander of Army Group Area North has to arrange the pro-
cedure for making these labor forces available to Higher Engineer
Commander 3.

273

5. In the case of all headquarters and offices in the army group
area and army areas it must be examined by means of the eco-
nomic agencies, to what extent the allocation of female labor
is necessary. In this respect the strictest standards must be
applied. All labor forces which are not absolutely required,
are to be released and made available for allocation to the con-
struction of the Panther line.

6. The armies will check the use made of the labor detach-
ments and of the Russian labor service and will report to Army
Group North/Oberquartiermeister, not later than 10 October
1943, which forces of the above can be made available for the
construction of field fortifications. The army group will hereby
make sure that such labor forces are utilized for construction
within its own army sector.

*******

IV. The Higher Engineer Commander 3 is responsible for the
housing of the laborers. The commander of Army Group Area
North has to support him in this to the fullest extent. In the
billeting space the troops and military installations must move
together more closely, the population must be housed in the
very narrowest space, and the population unfit for labor alloca-
tion, must be ruthlessly deported. The prohibition of troops
and population being billeted together may in special cases be
relaxed on the responsibility of the commanders.

For the High Command of Army Group North

The Chief of the General Staff

Signed in Draft: Kinzel

Certified :

[Illegible signature]

Colonel, GSC

Distribution: (As per draft)

274

PARTIAL TRANSLATION OF DOCUMENT NOKW-684
PROSECUTION EXHIBIT 719

EXTRACTS FROM REPORT OF SECRET FIELD POLICE GROUP 703 TO
COUNTERINTELLIGENCE OFFICER, 3d PANZER ARMY, 24 NOVEMBER
1943, CONCERNING ESPIONAGE ACTIVITY AND ALLOCATION OF
CHILDREN TO WORK IN REICH

[Handwritten] Secret

[Handwritten] Commander in Chief, la

Command Post, 28 November 1943

Secret Field Police Group 703
Diary No. 920/43
3d Panzer Army

Ic/Security Officer — Counterintelligence III, 119/43 Secret

To 3d Panzer Army Ic Counterintelligence Officer

Enclosed is report on results in an extensive espionage affair
which was brought to an end during the last few days ; please note
and inform chief of staff.

[Signed] v. Duehren

Field Police Commissioner and Unit Leader

[Handwritten note] 5 December — Concerning 30; information requested
which branch of Organization Todt is involved.

[Initial] W.

Command Post, 24 November 1943

Secret Field Police Group 703
Diary No. 920/43

Report

*******

8. Jefim Charitonow was in collaboration with Chripatsch,
Belochwostikow, and Pauline. Through mediation of Karlowna
Chripatsch, he, with his three juvenile children, made his way
to the partisans against the children's will; he was arrested on
the way.

He was shot on 22 October; the three children were sent to
Germany to work.

*******

275

PARTIAL TRANSLATION OF DOCUMENT NOKW-2531*
PROSECUTION EXHIBIT 527

REPORT OF FORTRESS ENGINEER STAFF 7, 6 MARCH 1944,
CONCERNING ESCAPE OF RUSSIAN WORKERS

[Handwritten] Chief Pi 1 61 Quartiermeister 2

Command Post, 6 March 1944

Fortress Engineer Staff 7 la

[Subject: Experience report about the escape of Russian workers

[Stamp]

Army Engineer Officer
3d Panzer Army
Received 7 March 1944
[Initial] H
[Handwritten] Taken care of

[Handwritten] U.R. [for return] Oberquartiermeister. Qu. 2 to report to
me (a) What can we do; (6) Who is the guilty party.

Heidk [Heidkaemper]

To 3d Panzer Army, Engineer Officer

[Handwritten] With enclosure to the activity report, 3 March.

The high number of Russian workers escaping from their
working places or from their billets despite being guarded is
mainly to be traced back to the following reasons :

1. Manner of conscription — Partly the workers are being seized
in the streets and under the pretext that they are to work for
2-3 days, they are being brought to work without any winter
clothing, shoes, mess kit, and blankets. In some cases the Rus-
sians were told that only their personnel data were to be taken
down and then they could go home. Couples were being fetched
and the children were left at home by themselves. The indigenous
auxiliary police fetched the Russians out of their houses at
night, but partially these people could buy themselves out of it by
giving some alcohol to the indigenous auxiliary policemen.

This manner of conscription did not increase the Russians’
willingness to work.

Men and women were assigned for work from labor camp
Vitebsk, which had been unable to work for quite some time.
They were told they would be taken to a hospital. Among them

• Further extracts from this document were introduced in evidence by the defense as Docu-
ment Reinhardt 208, Reinhardt Defense Exhibit 17. These extracts are reproduced in full
immediately hereinafter. See also the statements of defense counsel contained in the testimony
of the defense witness Westerkamp, reproduced in Section VII E 3.

276

were people 78 years of age, blind, paralytics, people with heart
diseases who collapsed at the slightest amount of work, epileptics,
women pregnant in the last stages up to the ninth month, people
sick with bad abscesses out of whose shoes pus ran, and some
with frozen limbs.

[Handwritten note] Fortress Engineer Staff on 8 March: only 1 group of
15-20 men transferred from Vitebsk via Buyush at the beginning of February.

(VI 2.) [Illegible initial]

The high number of people newly fallen sick in the labor camps
results from bad clothing.

*******

When food supplies were issued last, the food supply officer
announced that the potato ration of 1 kilogram would be reduced
to 700 gram at the next issue of rations. The potatoes issued are
very much frozen and a lot is waste. The official in charge of
administration of supplies with the higher engineer leader for
special employment promised sauerkraut as supplementary ration,
but it was not issued up till now. Only little fat is being issued
with the rations (9 grams per person per day), though supple-
mentary meat is being issued.

TRANSLATION OF DOCUMENT REINHARDT 208
REINHARDT DEFENSE EXHIBIT 17

MEMORANDUM BY QUARTIERMEISTER 2 OF THE 3d PANZER ARMY,
12 MARCH 1944, CONCERNING THE REPORT OF FORTRESS
ENGINEER STAFF 7 DATED 6 MARCH 1944*

[Handwritten] Chief Pi 1 61 Quartiermeister 2

Fortress Engineer Staff 7 la

Command Post, 6 March 1944

Subject: Experience report about the escape of Russian workers
To 3d Panzer Army, Engineer Officer

[Stamp]

Army Engineer Officer
3d Panzer Army
Received 7 March 1944
[Initial] H

Taken care of. [Handwritten]

[Handwritten] U.R. [for return] Oberquartiermeister. Qu. 2 to report to
me (a) What can we do. (6) Who is the guilty party.

Heidk [Heidkaemper]

****** *

Qu. 2

Command Post, 12 March 1944
[Handwritten] Oberquartiermeister

Notes for an oral report

1. Measures for relief

a. Food for fortification construction workers — The army
economy official has immediately sent his specialist to the Senior
Engineer Officer for Special Missions 8 and to Fortress Engineer
Staff 7 and granted a supplementary soup of skimmed milk with
wheat flour. The official in charge made a statement to the effect
that so far the entire allotted ration (according to Army High
Command ruling) had been distributed, including potatoes, which,
however, have been partly frozen.

b. Improved selection of workers — Oberquartiermeister order
to the corps headquarters, that in case of drives for the recruit-
ment of labor forces, a labor allocation official has to participate
right from the start. The Army Economy Leader — Group Labor

* Only the heading and introductory part of the report of the Fortress Engineer Staff 7 is
reproduced in this document, since the early parts of that report are reproduced immediately
above in Document NOKW-2531, Prosecution Exhibit 527.

278

could supply officials from his own ranks; but whether this em-
ployment could be achieved speedily enough in each case is a
matter still open to doubt.

2. The criticized conditions in the recruitment of labor forces
(kidnaping on the street, corruptness of the indigenous auxiliary
police, etc.,) can never be entirely eliminated, especially in cases
of sudden demand. It is possible that the criticized events concern
the Action Kaminski in which 750 workers were once supplied.
But such abuses are not entirely avoidable even within the area
of the divisions. The case of the “78 year olds, the blind, and
the cripples, etc.”, according to a statement by the Fortress En-
gineer Staff 7, concerns a group of 15-20 people which happened
to get mixed up with a transport at the beginning of February.
Responsibility cannot be fixed any more, as nothing is known
about this in Vitebsk. In general it is also acknowledged by the
Fortress Engineer Staff 7, that the total result in the recruitment
of labor forces is to be evaluated in an absolutely positive man-
ner, and that the complaints are only accompanying circumstances
of a comparatively minor nature. Fortress Engineer Staff 7 con-
siders it only as exceedingly troublesome that presumably exact
reports are to be submitted about every escaped civilian, etc., and
points out the extraordinary difficulties in guarding them.

[Illegible initials]

TRANSLATION OF DOCUMENT REINHARDT 222
REINHARDT DEFENSE EXHIBIT 18

EXTRACT FROM ACTIVITY REPORT OF 3d PANZER ARMY,

I JANUARY-30 JUNE 1944,

CONCERNING CONDITION OF RUSSIAN WORKERS

[Handwritten] Enclosure 4 to War Diary No. 5, 3d Panzer Army,
Oberquartiermeister

[Stamp] TOP SECRET

Activity Report , Quartiermeister 2, for the period from
1 January-30 June 1944. with enclosures

*******

8 March 1944, continued :

In a letter to Ia/Engineers, Fortress Engineer Staff 7 com-
plained that the workers put at their disposal were (1) infected
with serious ailments, (2) insufficiently fed. Regarding this
[subject], telephone conversation with Lieutenant Colonel Reusch

279

(Fortress Engineer Staff 7), MVR [Military Administration
Councillor] Behnisch, MVR Dr. Kaercher, and Captain Gehrke
(Fortress Engineer Staff 7) took place. It was ascertained that a
group of approximately 20 persons is concerned, which supposedly
arrived from Vitebsk via Bogushevskoye at the beginning of Febru-
ary, or at the end of January, representing a transport of sick people
which by mistake got into the workers’ train. Fortress Engineer
Staff 7 has to give a detailed report for each escape, and had
therefore felt that in the report on hand a corresponding general
review was called for. However, it was admitted * * *.

PARTIAL TRANSLATION OF DOCUMENT NOKW-2648
PROSECUTION EXHIBIT 528

REPORT FROM 3d PANZER ARMY TO HIGH COMMAND ARMY GROUP
CENTER, 23 MARCH 1944, CONCERNING EVACUATION OF
VITEBSK AND DEPORTATION OF INHABITANTS FOR
LABOR ALLOCATION

[Handwritten] Qu. 2 No. 394/44 Secret

[Stamp] SECRET

3d Panzer Army Command Post, 23 March 1944

Oberquartiermeister/Qu. 2 No. 2585/44 Secret

Subject: Evacuation of Vitebsk

The evacuation of the town of Vitebsk was completed on
18 March 1944. The total number seized was 25,792 persons.

Of those the following were transported :

To Olita, 4,081 persons.

To Orsha and Borisov to be sent further for labor allocation
to the Reich, 11,359 persons.

To Grajevo for labor allocation to the Reich, 1,638 persons,
for labor allocation to Parafianov, 999 persons.

Persons unfit for labor in trucks to the Tshashniki district,
3,846 persons.

The following were housed in special sections of the town of
Vitebsk for lack of other means of accommodation :

Persons unfit for labor, 3,318 persons.

Persons unfit for labor, but who have earned special consid-
eration, 551 persons.

Apart from the last two categories of persons the following
remained in Vitebsk :

Indispensable workers in local offices with their dependents,
1,300 persons.

280

Hospital patients, 1,200 persons.

Nonapprehended members of the civilian population (estimate),
1,500 persons.

*******

For Panzer Army Headquarters

The Oberquartiermeister
As Deputy
[Illegible signature]

Major

1 enclosure
Distribution :

High Command of Army Group Center, Oberquartiermeister/
Qu. 2

For information to :

Army Economy Leader
la

[Handwritten] Activity Report

*******

PARTIAL TRANSLATION OF DOCUMENT NOKW-2637
PROSECUTION EXHIBIT 523

DIRECTIVES ISSUED BY 3d PANZER ARMY IN JANUARY, APRIL AND
MAY 1944, CONCERNING FORCED LABOR OF CIVILIANS

[Stamp] SECRET

3d Panzer Army Command Post, 24 April 1944

Oberquartiermeister/Qu. 2 No. 3467/44 Secret

[Handwritten] Activity report

Subject: Employment of the civilian population

Reference: 3d Panzer Army, Oberquartiermeister/Qu. 2 No. 579/
44, Secret, dated 5 January 1944

[Handwritten] Qu. 2 No. 530/44 Secret
*******
It is ordered :

1. Corps headquarters and Commander of Army Rear Area 590
will ascertain by checks to be initiated at once, where the utmost
possibilities for seizing members of the civilian population capable
of working are not yet exhausted. * * *

281

2. The checking is to be carried out by specially assigned and
energetic officers or officials with officers’ rank (with an inter-
preter) in all communities which are garrisoned with German
units or otherwise are situated in the security zone of German
units. * * *

3. You are reminded of the following general directions for the
checking by the officers and officials assigned in the localities :

a. All able-bodied persons and those able to work must be
seized for allocation for labor, that is to say, in general all men
and women aged 14 to 55.

b. Civilians who are tied to their homes (mothers with small
children) are to be utilized primarily for road and highway con-
struction in the vicinity of their home communities, or — within
the permissible limit (3 percent of the actual strength of the
unit) — with troop units in the village for cleaning, washing,
and mending.

* 5}S * * * * *

For the Panzer Army

The Oberquartiermeister

[Typewritten] Engels

Certified :

[Signed] Westerkamp
1st Lieutenant and Qu. 2

Distribution :

Corps Headquarters
Commander Army Rear Area 590
For information:
la

Chief Army Engineer Officer
Chief Army Economy Official
Ic

Propaganda Company 697
Activity Report.

[Handwritten] Qu. 2 No. 595/44 Secret

[Stamp] SECRET

Army Headquarters, 7 May 1944

The Commander in Chief 3d Panzer Army
No. 3802/44 secret

Subject : Labor allocation of the civilian population
*******

I order that until further notice the civilian population should
keep to an 11-hour working day excluding the time taken up

282

going to and from work. The labor forces to be further econo-
mized by this means on many work-sites are likewise to be made
available for employment elsewhere through channels as ordered
(3d Panzer Army, Oberquartiermeister/Qu. 2 No. 579/44 Secret,
dated 10 January 1944).

Distribution :
Activity Report

[Typewritten] Reinhardt
Certified :

[Signed] Westerkamp
First Lieutenant and Qu. 2

[Handwritten] Qu. 2 No. 57/44 Secret

Command Post, 10 January 1944

[Stamp] SECRET

3d Panzer Army

Oberquartiermeister/Qu. 2 No. 579/44 Secret

Subject: Employment of the civilian population for construction
of field fortifications

* * * * * * *

Neither the labor offices nor the Kommandanturen (V) can by
themselves sufficiently penetrate the country in order to force
their will on the population and make them work. This is only
possible through the authority of the troops stationed in the
various villages. In view of the present combat situation it must
at last be achieved that, wherever German troops are stationed,
everybody down to the last able-bodied indigenous person — men,
women, and children above the age of 12 — must be made to work.
****** “*

Distribution :

[Typewritten] Reinhardt
Certified :

[Signed] Westerkamp
1st Lieutenant and Qu. 2

893964 — 51 19

283

PARTIAL TRANSLATION OF DOCUMENT NOKW-2406
PROSECUTION EXHIBIT 541

EXTRACT FROM SITUATION REPORT, 27 DECEMBER 1944, FROM ARMY
ECONOMY LEADER, 4th ARMY, CONCERNING REQUEST FOR
FOREIGN WORKERS FOR ARMY GROUP CENTER (CinC REINHARDT).
AND USE OF CIVILIAN LABOR FOR FIELD FORTIFICATIONS

The Army Economy Leader with Army Command 4
Diary No. : 466/44 Secret

Enclosure 1 to Army Command 4/Ia No. 10825/44 secret, of
30 December 1944

Command Post, 27 December 1944
SECRET

Situation Report for the period from 26 November to
25 December 19UU

* * i f: * * * *

B. Labor allocation

a. General —

* * * * * * *

In order to fulfill the remaining requirements, the Army Econ-
omy Leader requests the release of 7,000 foreign workers from
the area of Army Group A for the armies of Army Group Center.

b. Construction of field fortifications — For the larger work
projects for the construction of field fortifications by the divi-
sions, the need for 2,290 workers for 12 December 1944, was
reported.

The allocation of entire families for fortification construction
near the front line met with difficulties. By arrangement, 25
families, making a total of 80 persons, were sent to VI Army
Corps. Of these, 12 families, consisting of 51 persons (including
11 children under 10), were sent back as unsuitable by the
receiving division.

*******

[Illegible signature]

284

3. Extracts from the Testimony of Defense Witnesses
Westerkamp and Heidkaemper

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS
EBERHARD WESTERKAMP*

DIRECT EXAMINATION

Dr. Frohwein (counsel for the defendant Reinhardt) : Please
state your full name to the Tribunal, Witness.

Witness Westerkamp : Eberhard Karl Ludwig Westerkamp.

Q. Please spell your last name slowly.

A. W-e-s-t-e-r-k-a-m-p.

Q. When and where were you born?

A. On 30 September 1903, in Osnabrueck.

Q. What is your professional training?

A. I am a jurist, and I have passed my first and second state
examinations as a law clerk and government assessor.

Q. How long were you with the German armed forces?

A. From May 1940, until the beginning of February 1945.

Q. Thereafter what did you do?

A. Thereafter I was delegated to the government agency in
Waldenburg, Silesia as vice president.

Q. What is your profession now?

A. Now I am a farmer.

Q. What was your last military rank in the army?

A. First lieutenant.

Q. During the last war did you serve in the 3d Panzer Army
under General Reinhardt?

A. Yes. I did.

Q. How long did you serve in the 3d Panzer Army under Gen-
eral Reinhardt?

A. From the end of July 1942, until the end of July 1944.

Q. In what capacity did you serve in the 3d Panzer Army under
General Reinhardt?

A. During the first week I served as ADC; thereafter until
the end as Qu. 2.

Q. Can you please state in broad outline what the tasks of a
Qu. 2 were and what these letters meant?

A. The Qu. 2 was a department on the staff of the Oberquartier-
meister. This department had mainly to deal with those ques-
tions which referred to administration and economy in the army
area. Apart from that, it had to deal with a part of the
prisoner of war administration ; and, it also had some individual

* Complete testimony is recorded in mimeographed transcript, 11 May 1948, pp. 3761-3811.

285

tasks such as questions of leave supervision, soldiers’ homes and
similar matters.

*******

Q. I have now a few questions about the labor of indigenous
personnel. I repeat, I have a few questions regarding the labor
of the civilian population. That is, about those parts of the
civilian population who were not band suspects. Was this popu-
lation enlisted for work in your army area?

A. Yes.

Q. And for what kind of work?

A. It was firstly with the various German agencies. Many
German agencies, in agreement with other agencies, took in-
digenous help for their kitchens, for tailoring, etc., for the rest,
the civilian population was also enlisted for other types of work,
such as road and bridge building, clearing of snow, narrow-gauge
railroad construction, etc.

Q. Was the civilian population ever enlisted to build forti-
fications?

A. Yes. They were, for the same kind of fortifications which
I listed previously; they were projected on a large scale to the
rear, far outside the danger zone.

Q. And in what manner was the enlistment of this peaceful
population effected?

A. It took place partially, as I have stated, by way of agree-
ment, in voluntary recruitment. Also the indigenous adminis-
tration, that is in Russian communities, were asked to furnish
so-and-so many labor forces at such-and-such a time and such-
and-such a place.

Q. Did these laborers receive a consideration?

A. Yes. They received wages, monetary wages at a certain
scale, and in addition they received several privileges, for in-
stance, additions to their food rations, bonuses in kind, such as
clothing and so forth, were also issued.

Q. What was the attitude of the Russian population toward
these enlistments?

A. They were willing. The population was very pleased to help,
if only for the privileges which would otherwise have been inac-
cessible to them, but generally there was very good relationship
between us.

Q. You stated before that these civilians were used for the
construction of fortifications in the rear area. Do you know of
cases in which these civilians were used for fortification con-
struction in the fighting zone?

A. No. I know of no such labor.

286

Q. Now, subsequently were the German troops themselves used
for the seizure of labor for the building of fortifications?

A. Yes. That happened later. It became necessary when the
situation had become aggravated. The pressure for labor be-
came ever greater and the labor offices were no longer able to
cope with this to supply the adequate labor for us without
further help.

Q. Did the 3d Panzer Army at that time issue any orders on
the strength of which the population was to be compelled by
force to work?

A. No, certainly not. The very opposite, in fact. Not only for
that period, but for the whole period in which I was attached to
the army, I do not know of one case in which the use of force
was ordered. Here again we had to have a kind of directive
from General Reinhardt. It was to the effect that every use of
force was costing the blood of the German soldiers, by increasing
band activities, etc. Force was to be used under no circum-
stances. Nevertheless the population, if possible, was to be used
for labor in the crucial situations, they were to be fully exploited
for labor in critical situations.

Q. I will now put to you NOKW-2531, Prosecution Exhibit
527.* This is the report based on an experience of the Fortress
Pionier Staff Company, dated 6 March 1944, about an escape of
Russian laborers. This report mentions that sick persons, old
people, etc., were also dispatched for work.

A. My memory about this incident suddenly revived very
graphically when with this document, you directed my attention
to it, and this incident probably was retained by my mind because
at that time it created a good deal of publicity. I was immedi-
ately called up by the chief of staff and asked what this unheard
of matter was which had happened. I didn’t even know this
matter. It had just been received by the chief of staff.

Q. Who was the chief of staff?

A. At that time the chief of staff was General Heidkaemper
and, of course, measures had to be taken immediately. I believe
one officer and one civil servant were sent to the spot and every-
thing was being done, and the explanation was quite innocuous.
As a matter of fact the explanation was that obviously nobody
knew exactly what had happened, but obviously it was a mis-
direction, a misdirection of persons who were to be taken to
the rear from Vitebsk. They were to be evacuated. Now, by
some kind of error, they must have got into the wrong transport,
wrong convoy ; and they must have landed at this particular place
of work, but this was an unusual individual case, and, therefore,

* Document reproduced above in section E 2.

287

great commotion about it, which relatively soon abated because
on the spot the officer who had complained, that was the com-
mander of the Fortress Engineer Staff, admitted in the course
of conversation, “Well, things are not as bad.” He wanted to
vent his anger about something. I think, because he had to do
so much paper work, to write so many reports, etc.

Q. Now what you say now is that revealed from the entries
in your activity report?

A. I don’t know because I didn’t look at them, but my memory
is still fairly clear, although I did not read it.

Q. Perhaps I may ask the Tribunal in this connection to turn
to the two defense documents, Document Reinhardt 208, Rein-
hardt Defense Exhibit 17, and Document Reinhardt 222, Rein-
hardt Defense Exhibit 18. These passages which contain these
exonerating remarks were not translated by the prosecution
in their document ( NOKW-2531 , Pros. Ex. 527), and I want to
submit them in the defense documents.* Now, a few questions
regarding the labor of the civilian population in Germany. How
was the manpower enlisted to work in Germany?

A. It was done only on a voluntary basis. That was at the
beginning.

Q. And subsequently?

A. And subsequently we had an order from higher level which
I think applied to the whole eastern front. At any rate it
applied to the army group. No, actually it applied to the whole
eastern front because it came from the High Command of the
Army. It imposed a 2-years’ labor duty, a term of labor for 2
years in Germany for members of age groups 1925 and 1926,
that is, persons born in the years 1925 and 1926. I think initially
it was only for 1925, then it was for age group 1926.

Q. What was the attitude of General Reinhardt to this draft
of these age groups?

A. General Reinhardt was absolutely opposed to any measures
which in any way might constitute coercion, if it was bound
to have the effect that the fighting soldiers in the army area would
be in a more difficult position.

Q. Did he undertake any steps?

A. Yes. He sent me, among others, to the High Command of
the Army in order to present matters as they really were and
to state what in his view, the situation required; that it’s most
disadvantageous and, in cases, it might even be disastrous for
the army if they had to deal with all these requirements neces-
sitated by the draft.

* The three exhibits mentioned are reproduced earlier in this section.
288

Q. Was any change effected by your conversation with the
High Command of the Army?

A. No. No change took place, but, of course, my request was
listened to with sympathy. There was understanding in the
High Command of the Army, but I had the impression that they
themselves were powerless.

Q. And now what procedure did the 3d Panzer Army set up
in this draft of age groups?

A. The Panzer army could not refuse to draft these age groups,
1925 and 1926, pursuant to the central order. That is, it did not
do the work itself, but there were the labor allocation agencies,
to execute these functions. This had to be done and the only
thing that concerned the army in this matter was the best welfare
of these people from the moment when they were actually re-
cruited. I visited many labor offices — if you are interested in my
mentioning a further factor — these labor offices proceeded in the
same manner as German labor offices. They were very orderly,
and I myself inspected each one of these camps in which these
people were housed, and perhaps I may point to an activity
report. There are certain notations in there, I know for sure,
in which it is stated, “Such-and-such an age group has to be
detailed”. Mostly they were very small.

* * * * * * *

Q. Witness, during the examination this morning, you said in
conclusion that after conscription was introduced for the age
group 1925, 3d Panzer Army, on principle, maintained the volun-
tary system. Is that correct?

A. Yes. I said that the Panzer army did not issue any order
which provided coercive measures. On the contrary, I said, that
I only know orders and instructions to the effect that coercive
measures were admissible under no circumstances.

Q. I should now like to put to you Document NOKW-2341,
Prosecution Exhibit 444.* This is a report of the Commander,
Army Rear Area 590, dated 29 November 1942. It concerns the
commitment for labor of prisoners of war and the civilian popu-
lation. In this report it is said that the manpower for commit-
ment in the Reich will have to be gathered with forceful meas-
ures. Since you worked as an expert in the Oberquartiermeister
department, I should like you to tell me what you know about
this procedure.

A. I have no clear recollection of that particular procedure.
However, I gather from my own handwriting on this document
that I was in some way concerned with it. I further gather from

• Document reproduced above in section E 2.

289

a small notation immediately above my initials that after that
report had been circulated to various departments, it was to be
attached to the activity report as an enclosure. What is stated
in here sounds rather gruesome. I have no doubt that this report
of the Commander of the Army Rear Area is one isolated experi-
ence, which the agency of the Commander of the Army Rear Area
reported when the operation started. We are dealing here with
the year 1942 — 29 November 1942, to be exact — and there can
be no doubt that pursuant to this report, the [3d Panzer] army,
probably I myself as the expert, immediately took up contact with
the Commander of the Army Rear Area in order to explain that
in this way it was impossible to handle matters. It says here
literally, “We chased, etc”. That is the very opposite of what the
Commander in Chief of the [3d Panzer] Army wanted and ordered.
If such a report arrived, therefore, then I, who had to deal with
it, received a shock because matters could be directed in quite
the wrong direction, and that was most certainly to be prevented.
In my opinion there must be some indication in the activity report
of the connections and the further handling of this affair. It
says here, “After having been circulated to the la Section,” etc.,
“this report is to be attached to the activity report of the Qu. 2,”
and that leaves no doubt in my mind that the activity report
had to receive some details clarifying the matter. However, I
did not find them in the report.

Dr. Frohwein : If Your Honor please, I have to draw the atten-
tion of the Court at this point to the fact that this particular
activity report would be the proper evidence for the defense case
in order to prove that as an answer to such a dreadful report the
3d Panzer Army did take positive steps and did not approve of
this report. According to the notation, as the witness remem-
bered, that is contained in the activity report which the witness
himself compiled. The prosecution did submit the activity report
of Qu. 2 covering that period of time, but that specific period of
time to which this report refers is left out in the submitted docu-
ment. I have made every effort to look through the Washington
documents, so far arrived, in order to discover whether the re-
maining portions of the activity report might be contained there,
but I did not find it among these documents. Therefore I have to
assume that the prosecution has the whole of the activity report
but has not made that particular portion available to the defense.
I should ask —

Presiding Judge Young: Dr. Frohwein, you don’t have to as-
sume that. It does not follow because you haven’t found it that
the prosecution does have it. You can make a request of the
prosecution for it, and if they have it the Tribunal will turn it

290

over, but you don’t need to make that kind of an assumption. It
does not follow at all. Have you requested that from the prose-
cution?

Dr. Frohwein : Yes. I am doing this now. I should like for
the prosecution to make the whole activity report available to us,
of which we have a portion only now.

Presiding Judge Young: That is all you need to say about it,
you would like to have that report. Does the prosecution have it ?

Mr. Niederman : If the Court please, we have no original docu-
ments here at all. All the original documents are in Washington.
If that was requested by counsel it would have been delivered with
the 50 foot lockers that have already been delivered here. The
only parts of that exhibit are the ones we put in evidence, and I
would like to even challenge his statement that he doesn’t have
the entire part of that report, and that he has the entire report.

Presiding Judge Young : Well, you don’t know about it, there
is no need of challenging him. What we want to find, is the record
here, and if the prosecution has it, of course it should be sub-
mitted. These lockers have come over here, and if you can’t
find it, why that is no fault of the prosecution. It is no fault
of the Tribunal. You have the witness here. He can testify
to what was in it.

Dr. Frohwein: I beg your pardon. Your Honor. A portion
of a book has been submitted. If the prosecution has that portion
of the book, then the Washington document ought to contain the
remnants of the book. You can’t just have 20 pages from the
middle of a book and the remainder isn’t available. As all other
activity reports, this activity report was complete. Whether here
or in Washington, I don’t know. The book has been requested,
but it is not contained among the documents. Therefore, the
defense will have to have the benefit of the fact that this docu-
ment was not submitted. I can only present the evidence from the
document, and I have no way of getting at the document. I
have no way.

Presiding Judge Young: What do you want the Tribunal to do
to help you get it?

Dr. Frohwein : For the prosecution to be asked or requested to
obtain the whole of the book from Washington if it isn’t here
already.

Presiding Judge Young: You have already made your request
to Washington and we have granted it, and if you didn’t request
it why we can’t help that at this late stage. You have the man
that made it. You ask him about it. The Tribunal does not
care for any more argument on that point.

Dr. Frohwein : I beg your pardon, Your Honor, I did request

291

it. Just to clarify it, it is a part of those documents which I
requested from Washington. I am not making a new motion.
That book is contained on the list but it didn’t get here.

Presiding Judge Young: Well, you look through and see if
you can find it. If you can, you can submit it. Otherwise, the
Tribunal can’t look through all of those documents for you.

Dr. Fro h wei n : Witness, one question in conclusion. After you
have had a look at that photostatic copy in front of you, are you
sure of the fact, which you have mentioned previously, that the
Panzer army initiated steps in order to discontinue that matter?

Witness Westerkamp: There isn’t the slightest doubt in my
mind that this was so. Probably I myself was sent to the Com-
mander of the Army Rear Area in order to discuss matters with
him and to clarify what was allowed and what was not allowed.

Q. Why is it that there isn’t the slightest doubt in your mind
that the Panzer army did not just accept the facts, but took steps?

A. That results from the whole attitude and from the very clear
orders which the Commander in Chief [of 3d Panzer Army] issued
about the problem of the relationship towards the civilian popu-
lation, not only once, but as a permanent directive. It was the
simple consideration that such measures in the final analysis will
cost German soldiers’ lives. We did not want to send the civilian
population into the bandits’ arms.

Q. Do you know whether General Reinhardt himself saw the
reports, these reports of the Commander of the Army Rear Area
which you now hold in your hand?

A. I am not sure of it, but I don’t think that he received
knowledge of it. The document not only does not contain the
initial of the commander in chief but instead there is a circulation
note which shows the la as the recipient; apparently, not even
the la, however, received the document, because the Oberquartier-
meister crossed out the notation “to be sent to the la” and added
another notation “dealt with.” At any rate, it was not sent on
to the commander in chief and apparently not to the chief of staff,
either.

Q. It is your opinion then, that the matter was conclusively
dealt with by the Panzer army?

A. There isn’t the slightest doubt in my mind that that was so,
because it would be impossible, in view of the commander in
chief’s attitude, to suffer such incidents. I may add that I,
myself, as the man who dealt with these matters was excited and
indignant when I heard of these things. Apparently the whole
report was written in a very excited mood and does not neces-
sarily seem to be consistent with the facts.

Q. You said just now that the report was not submitted to

292

General Reinhardt. You know General Reinhardt from working
v/ith him. What, in your opinion, would he have done if he had
been shown this report by you or if anybody else had told him
about it?

A. Not five minutes would have passed before steps would have
been taken and measures would have been ordered. Someone
would have had to go off to the Commander of the Army Rear
Area to clarify matters. At any rate there would have been a
terrific fuss.

Dr. Frohwein : I have no further questions to put to the
witness.

Presiding Judge Young: I would like to ask a few questions.
General Reinhardt had jurisdiction over the area where this inci-
dent that you are speaking of occurred, did he not?

Witness Westerkamp: It was the army rear area in which
this incident allegedly took place. I am not informed concerning
the jurisdiction in this area.

Q. You said General Reinhardt would have done something
about it. He wouldn’t have done anything about it unless he had
had some jurisdiction, would he?

A. That has nothing to do directly with jurisdiction as far as I
know. The army rear area in any event was part of the army
area and was under the command of General Reinhardt. From
that fact, his intervention would have been quite authorized.

Q. You were around in the area of General Reinhardt’s com-
mand there, were you not, at different places?

A. Yes, I was on the staff of the Oberquartiermeister.

Q. Did you ever see anybody rounding up labor forcibly?

A. No. I personally never observed any such thing.

Q. Had you ever seen any that had been rounded up forcibly?

A. That depends what you understand by “forcibly”. On the
basis of the duty to work, yes, but if you regard force as using
forcible means I would have to say no.

Q. What do you mean by forcible means?

A. Well, that would mean a forcible driving together of the
population by the field police or other troops ; driving them from
the houses or picking them up in the streets and committing them
for labor. Your Honors, may I comment on this? It actually took
place in this way. Where the population didn’t report voluntarily
and didn’t like to do that type of work, certain instructions were
issued and then, generally speaking, the population obeyed.

Q. Suppose they didn’t obey, what happened then?

A. Well, I didn’t observe or experience anything where they
didn’t obey.

293

Judge Harding: Were there orders from higher headquarters
to conscript the age groups 1925 and 1926?

A. Yes. As I stated before, there was. That was the generally
announced labor draft, the age groups 1926 and 1925, to work
in the Reich all along the eastern front.

Q. Didn’t they come from the 3d Panzer Army, those orders?

A. Yes.

Q. Do you contend that those orders to conscript those classes
were not carried out?

A. No, I don’t contest that.

Q. They were carried out; they were conscripted and trans-
ported into the Reich?

A. Yes. The agencies of the labor administration had received
from their superior agencies the express order and many detailed
instructions to the effect that they were to arrange for the re-
cruitment and transport of these people. For this purpose certain
camps were erected, and labor exchanges, etc. That took place
before my eyes, I would say.

Q. And that was done regardless of whether these people
wanted to go to the Reich or not?

A. I beg your pardon?

Q. They were taken to the Reich regardless of whether or not
they wanted to go?

A. It was their duty and this draft had been announced for
these age groups and it was not dependent upon their own free
will whether they went.

Judge Harding: That’s all.

*******

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS
OTTO HEIDKAEMPER*

DIRECT EXAMINATION

Dr. Frohwein (counsel for the defendant Reinhardt) : Witness,
please state your full name to the Tribunal.

Witness Heidkaemper: Otto Heidkaemper.

Q. Will you please spell your last name?

A. H-e-i-d-k-a-e-m-p-e-r.

Q. When and where were you born?

A. On 13 March 1901, in Lauenhagen.

Q. Can you pronounce the place of birth a little clearer?

A. Lauenhagen.

* Complete testimony is recorded in mimeographed transcript, 11-12 May 1948, pp. 3812-3878.

294

Q. Where do you live now?

A. Bueckeburg.

Q. What was your last military rank in the German armed
forces?

A. At the end I was a major general.

Q. What military position did you have in the Eastern Cam-
paign in Russia?

A. At the beginning of the Eastern Campaign I was 1st General
Staff Officer of the 4th Panzer Division; in May 1942, I became
chief of staff of the 24th Panzer Corps; in May 1943, I became
chief of staff of the 3d Panzer Army; and on 1 September 1944,
I became chief of staff of Army Group Center.

Q. What were your functions as chief of staff of the Panzer
army?

A. I was the first adviser of my commander in chief, and I
was responsible to him for the whole work carried out in the
staff.

Q. What documents could you yourself sign in your capacity
as chief of staff?

A. I was only authorized to sign those documents which did
not contain any basic decisions ; and, such documents as needed a
quick decision in view of the situation at the front.

Q. In what event could you make those last mentioned de-
cisions ?

A. Only if I could not reach the commander in chief who was
usually en route some place during the day.

Q. If you signed such orders, when did you inform General
Reinhardt of such a decision which you had made?

A. When it was possible I informed the commander in chief
while he was absent by telephone or by radio ; otherwise, later in
the evening after he returned to the headquarters.

Q. How often was General Reinhardt away from the head-
quarters?

A. During the week he was away almost every day of the
week. You can count the days when he was present there at the
headquarters.

Q. What was General Reinhardt’s purpose in making these
daily trips to the front?

A. The General wanted to maintain contact with the fighting
troops by personal observation of the conditions at the front; by
personally observing the conditions at the front he wanted to gain
his information and through his frequent visits with the troops
he wanted to exert immediate, direct influence on the leaders and
the soldiers.

Q. In what manner could he exert influence on the spot?

295

A. He frequently issued orders on the spot which had local
validity.

Q. Why did he give such oral orders on the spot, and why
didn’t he issue them in writing?

A. The commander in chief usually visited one or two divisions
and, therefore, only orders pertaining to the restricted area were
given orally whereas written orders were only issued when
matters of the whole Panzer army were concerned.

Q. You in your position as chief of staff, were you informed
of what the commander in chief, General Reinhardt, ordered dur-
ing his trips to the front and what he discussed in his trips
to the front?

A. Yes. The commander in chief informed me of important
matters ; he did that in the evening when I reported to him ; then,
he had his notes of everything that happened during the day
during his visits to the troops and I learned of it later in the
evening through written reports of the officers who in each case
escorted the General.

Q. That is how you were informed of what General Reinhardt
did. Now, in what manner was General Reinhardt informed of
what you did and of the events which took place during his
absence; reports, orders, documents, which came in, etc.?

A. Generally, the General arrived, returned from the front at
six o’clock in the evening. Then he looked at the incoming mail
and subsequently I appeared to report to him orally.

Q. Were all the incoming communications shown to him?

A. No. By far not that; that would have been impossible.

Q. What type of communications were as a rule submitted to
him?

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A. The General was only shown the most important documents
which I had particularly marked to be shown to him.

Q. Can you even today recognize on certain documents whether
such a document was submitted to General Reinhardt or not?

A. Yes. The General signed all documents which had been
shown to him with the first and last letters of his name.

Q. You as chief of staff, did you yourself see all the documents
which were submitted to General Reinhardt for signature?

A. Nobody was allowed to submit a document to the General for
signature which had not previously been shown to me and which
I had not initialed. That was the identification for the General
that the document in question had been dealt with according to
his directives; that it was correct as far as the contents went;
and, that all the necessary departments had participated in the
work on the document.

Q. I would like to discuss with you who reported orally to

296

General Reinhardt? How often did you yourself orally report to
General Reinhardt?

A. I saw him daily in the evening after his return from the
front trips; in some special situations I saw him early in the
morning before he left.

Q. Did other officers also come to General Reinhardt to report
orally; I mean officers of the staff of the Panzer Army?

A. Generally the Ha, the adjutant reported to the General
daily; once or twice during the week the Oberquartiermeister
and once or twice weekly the army judge. The remaining officers
of the staff whenever they had the time or the General had time
and whenever it was necessary. The First General Staff Officer
did not report independently; he was only present during the
reports, if a tactical, important tactical situation or tactical order
of importance was being discussed. Furthermore, the Ic reported
daily.

Q. During these daily oral reports or on any other occasions
were all Ic reports shown to General Reinhardt?

A. You have to distinguish between the so-called Ic reports
which was a fixed term; that was the report which the Ic com-
piled from the enemy information which he received daily; and,
between the other Ic reports, particularly the Ic reports which
arrived from the troops. These numerous reports I would esti-
mate that there were daily 150 to 200 of them. To show these to
the General would have been impossible.

Q. What did the Ic report orally to the General every day?

A. He reported daily about the enemy situation, about troop
movements upon the front, and about the tapping of enemy
radio service. These reports formed the basis for further deci-
sions, for the tactical orders for our main task, namely, to conduct
the war.

Q. Did the Ic also report other matters in his sphere of work?

A. There was no time to do that daily, because the discussion
of the enemy situation took up a lot of time, but once or twice
during the week, the Ic reported about other factors in his sphere
of work, the band situation, for instance, special reports of the
counterintelligence troops, reports of the Secret Field Police, etc.

Q. Were you as chief of staff informed of what was said dur-
ing these reports of the other officers to General Reinhardt?

A. Yes. Before these officers went to report orally to the Gen-
eral, they came to see me and I established what was to be
reported to the General. If the General touched upon certain
questions on his own initiative during these reports, then the
officers, according to their orders, immediately after the oral

297

report, had to tell me about it, at the latest before their next
report on the next day.

Q. Were there also officers who could go immediately to the
General and not report to you prior to their reporting to the
General?

A. That was only the judge advocate. I had nothing to do with
him in my capacity as chief of staff.

Q. Apart from matters of jurisdiction, you were informed about
everything that was reported to the General while you were not
present?

A. Yes.

* * * * * * *

Q. I will now turn to the topic, the Wehrmacht and its relations
with the SD. Did you personally have any contact with the SD
while you worked with the 3d Panzer Army?

A. I personally had nothing to do with the SD as chief of
staff. I recall that only once during my work as chief of staff
an SS man called on me, and I surmise today he was a member
of the SD. I assumed that this man, as it was shortly after my
arrival at the army headquarters, that this person at that time
presented himself to me, he wanted to introduce himself as
being the chief of the SD detachment, but I cannot bind myself
to the assertion that it was actually an SD man. At any rate
it was not a basic conference. It was merely a sort of call, a
courtesy call of this person in order to introduce himself to me.

Q. Do you know whether General Reinhardt had any personal
contact with members of the SD at any time ?

A. In my view the General had no personal contact with the
SD. The only case which I recall was that stated in the summer
of 1943. The Ic officer called upon me and told me that one or
two SD people had called on him who wanted to report to the
commander in chief, and the commander in chief told his ADC
that he was reluctant, he didn’t want to receive them. The Ic
also was of the opinion that you could not tell these people to go
away because they may come again, and he asked me to inter-
vene and see that the commander in chief actually received those
people. I myself called on the commander in chief and reported
to him, and then the commander in chief very angrily told me
that he wanted to have nothing to do with those people. Now
whether subsequent to that a reception took place I do no longer
know, but I do not believe so because I certainly would have
attended. I don’t think that the General would have received
SD people without having me present as a witness.

298

Q. Was there a relationship of subordination of the SD to the
Wehrmacht?

A. No. The SD was not subordinate to us. I would have to
know about this from some kind of order during my time as
chief of staff.

Q. You previously mentioned that you did not know, Witness,
that the SD, for instance, transferred band suspects to concentra-
tion camps for penal servitude?

A. No. I did not know about it. I stated before that I saw
these orders for the first time during my interrogation in Novem-
ber, when the prosecution put it before me.

Q. Did the Ic officer — wasn't he bound to have reported to you
about these transfers?

A. I can only answer today, now, what I have said about differ-
ent communications that the lc officer had no reason because these
transfers, these shipments did not concern us. They were a pure
SD matter and the SD of course, did not report to us about them.

Q. Did the OQu., that is the Oberquartiermeister, who, in his
activity reports on several occasions mentioned these shipments,
would not he have been bound to give you an oral report about
them?

A. There was no special reason for that because the shipments,
the priority of these shipments, was dealt with by the section of
Oberquartiermeister quite independently. I had no interest in
them, into what shipments were classified by the Oberquartier-
meister as having top priority or having deserved less priority.

Q. What could General Reinhardt himself know about this
connection between the SD and the Oberquartiermeister with re-
spect to this question of shipments?

A. The General could not know anything about it, because if
the Oberquartiermeister did not even inform me about it, then
he certainly would not have informed the General himself.

Q. Did you know at the time that the SD killed civilian persons
who had been turned over to them?

A. I did not know of it at the time. For the first time I heard
about these killings after the end of the war.

Q. Did you know that in Auschwitz and in Lublin the SD
in particular killed band suspects who allegedly came from the
area of the 3d Panzer Army?

A. During the war I had no idea of the existence of the camps
of Auschwitz and Lublin. It was for the first time, I think in
the summer of 1945, I heard from an American officer while I
happened to be in a prisoner of war camp.

Q. This brings me to the end of this topic of the relations
between the Wehrmacht and SD, and I have a few specific ques-

893964—51 20

299

tions about the labor question. 1 refer to Document NOKW— 2340,
Prosecution Exhibit 484.* This deals with the drafting of age
group 1925, for labor in the Reich. This order was signed by
you personally on 19 July 1943. Why did you sign this order
and not General Reinhardt?

A. In June and July 1943, the General was on leave for 4
weeks. The deputy commander in chief was with his corps be-
cause we were engaged on the front as I mentioned in the
beginning in static warfare, and this order in its essentials was
only an implementation order to an order of the High Command
of the Army so I thought that I was authorized to sign this
order myself.

Q. Did you report anything to General Reinhardt about this
order upon General Reinhardt’s return from his leave?

A. Yes. A few days after his return from his leave, on the
occasion of a conference attended by the Oberquartiermeister, as
far as I remember, and an expert of the staff in the Qu. 2 section,
I reported to him about this order.

Q. And did General Reinhardt agree to this order which you
bad signed?

A. No. At the time he was very angry, not only about my
order but also about the substance of the High Command of the
Army or OKW order — I don’t know which it was — because for
the first time the principle of recruiting labor forces for Germany
on a voluntary basis had been broken.

Q. Did the Panzer army have any interest in maintaining the
principle of voluntary recruitment?

A. Yes. We had the greatest interest in that principle, be-
cause any coercion which we exerted on the population was
bound to result in the population running over to the bands ; and
we had very great interest in it, especially since the 3d Panzer
Army had the biggest bandit area in the whole Army Group
Center, and we did not want even more civilians to run over and
help the bands.

Q. Now, what was General Reinhardt’s decision when you
brought this, your order, to his attention?

A. The General amended this order in a certain manner. I
recall that during this conference, which I previously mentioned,
be once again clearly explained his point of view to us and issued
a prohibition against any force or any terror being used. He
prohibited the use of force or terror. He further ordered that the
quotas of people that had to be shipped to Germany once a week,
first of all had to be made up of persons from the age group of

* Document reproduced above in section E 2.

300

those born in 1925, who voluntarily reported for working in Ger-
many. He further ordered that the Oberquartiermeister should
do everything in order to calm down the population, and the
people should be told that if the quotas imposed on us cannot
be filled by volunteers from the age groups of those born in
1925, only people drafted from age group 1925 were to be sent.
He wanted to see to it that the population knew that as far as
they did not fall under this 1925 age group they need have no
anxiety about their being recruited for transfer to Germany.
I recall that on the strength of this conference a report was made
to the army group in which this principle of the General and his
modified orders were expounded.

*******

Q. Now in spite of this, was your order dated 19 July 1943,
still executed in spite of this about the drafting of age group
1925?

A. The drafting of this age group had been ordered by the
High Command of the Army, we could not circumvent it. The
recruitment was the task of the labor offices. I know that first
of all volunteer workers were shipped, and I think that, in fact,
only one train left for Germany; because when the drafting of
the age group had been finished, a counterorder arrived that the
age group was no longer to be sent to Germany but that they
were to be used for harvesting in the army area.

Q. After this period were members of other age groups
forcibly sent to Germany for labor in Germany?

A. No. I previously stated that the General, on principle, held
the view that manpower was only to be supplied on a voluntary
basis, which actually happened. There is only one small excep-
tion to be mentioned. I believe it was in March or April or even
May 1944, when we were forced to do this, because owing to the
position at the front in the area of Vitebsk, we had to evacuate
the population and were confronted by the question — either we
had to leave them at the fringe of the band areas where they
would have immediately gone over to the bands, or else we had
to ship them to the rear. It was ordered that they were to be
sent to a camp in the rear of the army. Another agency then
decided who among the population were to remain in the camps
and who were to be sent to Germany. That was no longer our
concern.

Q. Did you yourself hear about any incident in which, never-
theless, force was used in order to reach this manpower demand?

A. I can only think of one case, that is the case which I heard
from the General himself when he returned from a front line

301

visit. He called me and told me most indignantly that he had
found out at an Ortskommandantur that people had been re-
cruited and had forcibly been made ready for shipment to Ger-
many. He himself said that he had intervened immediately on
the spot, and he ordered me immediately to tell the Oberquartier-
meister that once again all agencies involved were to be supplied
with the order of the commander in chief, that on principle, volun-
teers only were to be sent to Germany.

Q. This brings me to the end of this topic of labor in Germany.
I now have a few questions about the ill-treatment of the popu-
lation. There are two short documents, about which the witness
personally can testify. They are NOKW-2531, Prosecution Ex-
hibit 527, and I would ask the Court to read this in conjunction
with Document Reinhardt 208, Reinhardt Defense Exhibit 17.*
Do you know this report, Witness?

A. I recall this report very exactly, because I know that when
I read it for the first time I was most indignant about it; this is
also revealed by my personal entry at the head of this communi-
cation which reads “U.R. [Unter Rueckerbittung (for return)]
Oberquartiermeister, Qu. 2 to report to me about (a) what we
can do, ( b ) who is the guilty party.” It is unusual for me that,
firstly, I ordered the expert concerned to report to me personally,
a thing which never happened; and, secondly, that I put “U.R.”
on this communication which meant that I myself wanted this
communication returned to me in order not to let the whole affair
escape my attention.

Q. And what was actually reported to you about this incident?

A. The Qu. 2, the Quartiermeister 2, I think on the same day or
the next, called me on the telephone and told me that he had
initiated the first investigation and that the case had turned out
much more harmless than was actually to be gleaned from the
report of the Fortress Engineer Staff.

Q. And how was it more innocuous?

A. The Quartiermeister 2 had found out — I believe it is con-
tained in the document — that 15 to 20 sick persons had been
shipped for welfare reasons from Vitebsk which was threatened
by the enemy. They had been shipped with a train in which the
able-bodied population was also being evacuated. Upon the un-
loading of this train, the sick people had unfortunately been
mixed up with the people fit for work and were conducted to
their place of work along with the able-bodied personnel. At the
time I ordered or rather explained to the Quartiermeister that
this case was not settled for me yet. I wanted the matter to be

* Ibid.

302

investigated and further reports submitted to me. A few days
afterwards, probably the Qu. 2, again, I don't know who it was,
reported to me again. This report is noted in the documents
under “Notes for an oral report". We intervened by issuing an
additional ration to the working population, because in this re-
port the food was objected to; then the corps headquarters re-
ceived an order that in the future, when manpower was being
mobilized, more attention and greater care was taken so that such
incidents as this one did not recur. I further recall that the
army engineer officer, who himself had also initiated an investi-
gation, reported to me that the commanding officer of this For-
tress Engineer Staff who had made this report had admitted
that it was an isolated incident, and he had even conceded that
he had wanted to express it in that stringent manner because he
had been very angry about the fact that the army called con-
stantly for reports about the condition of the working civilian
population.

Q. I also want to refer to Document Reinhardt 222, Reinhardt
Defense Exhibit 18.* The last case concerns Document NOKW-
2852, Prosecution Exhibit 485. This is a correspondence between
the Panzer Army and the Higher SS and Police Leader stationed
in Riga. The prosecution appears to gather from this document
that the 3d Panzer Army shipped all able-bodied men and women
for labor to Germany. The prosecution has merely translated
the first sentence in the communication of the Higher SS and
Police Leader. I would ask the Court to read in conjunction
with this Reinhardt Document 210, Reinhardt Defense Exhibit 8
— perhaps you can briefly describe this incident and its essentials,
Witness.

A. The incident which was the basis for this correspondence
was as follows: The Higher SS and Police Leader Jeekeln was
in charge of an antipartisan operation which also overlapped
into our army area. It had been agreed that the band suspects,
seized in the course of this operation were to be turned over to
the 3d Panzer Army after the conclusion of the operation. This
agreement had not been adhered to by the police leader, but he
had the whole population shipped away, not only the band sus-
pects but also the persons who had been completely exonerated.
Members of the population then turned to the 3d Panzer Army
in order to find out where their relations and next of kin had been
sent. For that reason the Panzer Army had written to the
Higher SS and Police Leader ; then we received this insolent reply,
dated 31 July, in which it is stated among other matters, in the
second paragraph: “For the rest these persons come from band

* Ibid.

303

infested areas in which no German soldier can move without
danger to limb and life. For that reason your inquiries are un-
intelligible, and we ask you to desist from submitting such appli-
cations because we cannot deal with them.” At that time I sub-
mitted this communication to the commander in chief and he
refused personally to sign the reply and ordered me to do it
because he was so angry, and, in addition only an SS first lieuten-
ant had signed the letter. I myself replied and said among other
things that the inquiries of the Panzer Army would become more
comprehensible if the sober facts were known and could be fully
appreciated, the facts which determine the position in our local
areas and the necessity arising therefrom of a sensible and con-
sistent policy towards the civilian population. This policy was,
that although lawlessness and resistance were counteracted with
ruthless severity, justice and welfare were to be striven for.
On the next page of the reply I stated that the Panzer Army would
not take responsibility if disturbances were fermented from out-
side. The fact alone that the persons came from band infested
areas was no reason why their fate should be brushed aside and
their condition ignored. At that time I submitted my reply to
the General, or rather, I talked to him before I sent it off, and we
expressly put the army point of view on paper, that is, the
point of view which we followed in our policy towards the popu-
lation coming from the band infested areas.

Q. This brings me to the end of my questions, General. On
3 May 1943, you became chief of staff of the 3d Panzer Army.
When did you leave the service?

A. On 26 January 1945, together with my commander in chief,
I was dismissed and sent home. The personnel office gave me no
new assignment.

Q. Now, in view of your long collaboration with General Rein-
hardt, my last question is, will you please tell me something about
the character of General Reinhardt; will you give me a brief and
concise appraisal of his character?

A. I may perhaps make the preliminary remark that it is
repugnant to me to talk about my commander in chief in his
presence, but I believe that I have to do so before this Tribunal,
because in the last 2 years of the war I knew the commander in
chief, as nobody else did. When in May 1943, I became chief of
the staff, it was known to me that the General had the reputation
in the army of combining in a very rare manner, the best soldierly
traditions with the highest principles of humanity. The war,
with its many crises and dangers, had torn all the masks from
our faces. I think that everybody got to know the other fellow
as he really was. And I think I also learned to know the General

304

as he really was. We all knew that the General used all his
force; that he derived all his energy from his deep, profound
belief in God. His justice and sense of responsibility were based
on this deeply religious attitude, and this sense of responsibility
before the Highest Being is the essence and decisive factor for all
his actions. The General was an example to us all in his irre-
proachable conduct, in the chivalrous attitude which he displayed
towards the enemy, and also in his modesty which very often put
us to shame. He was devoid of any feeling of vindictiveness
towards the enemy, and that is the reason why he was entitled
again and again to admonish his soldiers to wage this struggle,
and particularly the struggle against the partisans, as decent
soldiers. We at headquarters, from the chief of staff down to the
youngest enlisted man, all revered the commander in chief as a
father, and I know that the front-line soldier who knew his com-
mander in chief through his daily visits to the front lines — to
the most advanced trenches, loved him on account of his upright-
ness and kindness in a manner such as I had never before wit-
nessed throughout my 27 years in the service. I can well say
that the Tribunal might ask any officer or even any single soldier
who ever served under the General, to come to the witness stand
and on oath, he could not say anything else than what I have
said about the commander in chief. In conclusion, I may perhaps
say that throughout the army there was only one opinion voiced
about the General, because he was one of our very best.

Dr. Frohwein : I have no further questions.
*******

F. Plunder of Public and Private Property, Destruction
and Devastation Not Justified by Military Necessity

I. INTRODUCTION

In paragraph 68 of the indictment all the defendants were
charged with the conduct alleged to be criminal in connection with
“unjustified devastation, wanton destruction, and plunder of pub-
lic and private property in German occupied territory pursuant
to a deliberate design and policy of the German armed forces”.
The defense claimed that, when devastation occurred, it was
dictated by military necessity and therefore no criminal char-
acter could be attributed to the conduct of the defendants.

In the materials appearing below, a number of contemporaneous
documents (section 2) are followed by defense evidence (section

305

3) containing extracts from two allied publications and from the
testimony of the defendant Woehler.

Considerable argumentation on questions of the rights and
duties of military occupation, military necessity and related mat-
ters appears below in section IX, Final Argumentation.

2. CONTEMPORANEOUS DOCUMENTS

PARTIAL TRANSLATION OF DOCUMENT NOKW-3438
PROSECUTION EXHIBIT 1599

EXTRACT FROM WAR DIARY OF 4th ARMY, I JANUARY-31 MARCH
1943, CONCERNING DEVASTATION ORDERS

War Diary No. 15
4th Army Headquarters

Started : 1 January 1943 Concluded : 31 March 1943

4th Army was subordinate from 1 January 1943 till 31 March
1943 to Army Group Center (already since September 1940)

The War Diary was kept from 1 January 1943 till 31 March 1943
by Lieutenant Colonel von Mienskowski

13 February 1943

❖ * * * * * *

Operation “Buffalo”

* * * * * * *

Army group has given the order to destroy the terrain in front
of the “Buffalo” line effectively. Directly in front of the position
a devastated zone is to be created. The highway and the autobahn
are to be destroyed. The 9th Army is responsible for seeing that
the autobahn is destroyed. The 4th Army will provide an en-
gineer battalion for this. The town of Vyazma is to be destroyed
by the 4th Army. Thereupon, at 1815 hours the commander in
chief asked the general of the engineers of the army group to
assign the destruction of Vyazma also to the 9th Army, since the
latter will receive an army engineer battalion. With regard to
this, General Woehler decided at 2125 hours that the 4th Army
is to reach an agreement with the 9th Army as to who is to
destroy Vyazma.

* * * * * * *

306

PARTIAL TRANSLATION OF DOCUMENT NOKW-1295
PROSECUTION EXHIBIT 565

EXTRACT OF ORDER OF llth ARMY COMMAND, 3 JANUARY 1942,
SIGNED BY DEFENDANT WOEHLER, CONCERNING OPERATIONAL
STRATEGY IN THE EAST

TOP SECRET

Army Headquarters, 3 January 1942

11 copies — llth copy

llth Army Command

Department la No. 20/42 Top Secret.

[Stamp] TOP SECRET

[Handwritten] War Diary

Subject : Situation and operational strategy in the East
The Fuehrer has ordered —

1. The Soviet Russian leadership at this time is concentrating
all its forces in order to make the German front lines fall back
and thus annihilate them under the effects of the icy Russian
winter.

* 5|C * * JR Jk

But if every town and village is held to the last man, and there
[in cases] where I order a withdrawal, each town and village is
burned down and the hearths and chimneys are demolished, then
the enemy who has broken through between the localities, will also
surely be annihilated. For even the Russian, cannot live in winter
without the protection of buildings or of constructed positions.

* * * * * * *

Distribution :

Corps Headquarters LIV Army Corps, 1st copy

Corps Headquarters XXX Army Corps, 2d copy

Corps Headquarters XLII Army Corps, 3d copy

Staff Officer, Artillery, 4th copy

Chief Engineer Officer, 5th copy

Chief Signal Officer, 6th copy

Commander of Land Passages, 7th copy

Oberquartiermeister, 8th copy

Staff Military Control Officer, 9th copy

Circulation Ic/IIa (draft), 10th copy

War Diary, llth copy

11 copies

For the Army Command

Chief of the General Staff

[Signed] Woehler

307

PARTIAL TRANSLATION OF DOCUMENT NOKW-631
PROSECUTION EXHIBIT 568

REPORT FROM EINSATZSRUPPE D, TO I Ith ARMY, 12 FEBRUARY 1942,
SIGNED BY OHLENDORF* CONCERNING SEIZURE
OF WATCHES AND RUBLES

[Handwritten] W [Woehler]

The Commissioner of the Chief of the Security Police and the
Security Service assigned to the Commander of Rear Area
Army Group South

Einsatzgruppe D

Command Post, 12 February 1942

Journal No. 381/42

To 11th Army Command

Subject: Confiscations by Einsatzgruppe D

Reference: Telephone conversation between Brigadier General
Woehler and SS Captain Seynstahl on 12 February
1942

I. Confiscated watches

The watches confiscated in the course of the anti- Jewish actions
were duly entered as received. The watches which represent
valuables (gold and silver watches) were sent to the treasury in
Berlin, as directed. The rest of the watches, whose value is so
trifling that their general conversion does not appear appropriate,
were handed over to members of the armed forces (officers and
rank and file) and to members of Einsatzgruppe D, for a nominal
price or gratuitously, dependent on the individual case.
*******

II. Confiscated rubles

The money seized in the course of the anti- Jewish actions was
duly entered as received, and transmitted as directed to the Reich
Credit Bank to be credited to the Reich, except for a small amount
which is required for official purposes (wages, etc.).
*******

[Signed] Ohlendorf
SS Oberfuehrer [Senior Colonel]

* Defendant in the case of United States vs. Ohlendorf, et al., Case No. 9, Vol. IV, this
series.

308

PARTIAL TRANSLATION OF DOCUMENT NOKW-3238
PROSECUTION EXHIBIT 1606

REPORT FROM EINSATZGRUPPE D, TO I Ith ARMY, 12 FEBRUARY 1942,
SIGNED BY OHLENDORF, CONCERNING SEIZED WATCHES

Command Post, 12 February 1942
[Handwritten] W [Woehler]

The Commissioner of the Chief of the Security Police and Security
Service assigned to the Commander of the Rear Area of Army
Group South

Einsatzgruppe D

To 11th Army Command

Subject: Watches

I was informed by telephone by the town commander of
Simferopol that the commander in chief requests the watches still
on hand from the anti-Jewish action for the army for official use.

I am herewith turning over 120 watches to the army which in
the meantime have been made serviceable by repair. Fifty watches
are still at the repair works, some of which can be repaired.

Please let me know if the army still needs the rest of the
watches.

[Handwritten in margin] Yes

[Signed] Ohlendorf
SS Oberfuehrer [Senior colonel]

[Stamp]

Army Command 11, Ic/Counter
Intelligence Officer
16 February 1942

[Handwritten] Counterintelligence officer dealt with.

To the files.

R 14/2

309

PARTIAL TRANSLATION OF DOCUMENT NOKW-1300
PROSECUTION EXHIBIT 564

EXTRACT OF TELETYPE FROM ARMY GROUP SOUTH TO I Ith ARMY,
22 DECEMBER 1941, CONCERNING DISSEMINATION
OF FUEHRER ORDERS

Teletype Office 11th Army Command Signal Officer

H C G X 5236

Teletype

Code Address Current Number

Date:

22.12.41

Sent

Time:

1405

[Stamp]

By:

H B 1 X

Army Command 11 Section la

Through

: [Signed] Schmid

22 December 1941

No. 4641/41 Top Secret

[Stamp]

la

Id

♦ Jfc ifc ifc jfc ^

The following deliberations of the Fuehrer are to be dis-
seminated in a suitable form among all commanding officers of
the fighting troops and of the supply troops.

j

3. Any terrain which the enemy compels us to leave to him
must be made useless to him to the greatest extent. Every town
and village must be burned down without consideration for the
inhabitants in order to deprive the enemy of the possibility of
shelter. That must be prepared. Should the destruction not be
possible, undestroyed towns and villages must be destroyed subse-
quently by the air force, because the enemy, exactly like our own
troops, is dependent on the towns and villages during the cold.

For him, being the aggressor, the difficulties will be greater than
for our own troops if they are in a fairly well constructed position.

Army Group South la
No. 2298/41 Top Secret

310

PARTIAL TRANSLATION OF DOCUMENT NOKW-1727
PROSECUTION EXHIBIT 896

EXTRACT FROM ACTIVITY REPORT FROM ORTSKOMMANDANTUR
YEVPATORIYA TO COMMANDER OF ARMY REAR AREA 553,

21 DECEMBER 1941, CONCERNING THE COLLECTION AND STORAGE
OF PROPERTY OF "RESETTLED" JEWS

Yevpatoriya, 21 December 1941

Ortskommandantur I (V) 277
Office 45.876
Diary No. 365/41

Subject: Activity report for the period 11 December — 20 Decem-
ber 1941

To : Commander of Rear Area 553,

Department Quartiermeister

[Handwritten] Department V has copy Sector III received.

[Initial] B

I. Military affairs

* ifc ^ * * *

The placing in safety of furnishings which are being collected
in warehouses is under way. The apartments of Jews resettled *
by the Security Service were taken over by the Ortskommandan-
tur ; furnishings, clothing, and crockery were collected and put in
order. The collecting of captured enemy material and junk is
under way. Due to the fact that none of the vehicles of the
Ortskommandantur are functioning, this work is very difficult.

* * * * * * *

[Handwritten] 22 December. 1 copy sent to Army Command 11, Oberquar-
tiermeister/Qu. 2.

To the files. “0” [Initial] B 22 December
* * * * * * *

* The original typewritten word “exekutierten” (executed) was erossed out and substituted
with “umgesiedelten” (resettled) in handwriting.

311

PARTIAL TRANSLATION OF DOCUMENT NOKW-I88I
PROSECUTION EXHIBIT 913

EXTRACT FROM ACTIVITY REPORT OF ORTSKOMMANDANTUR
BAKHCHISARAI TO ARMY REAR AREA 553, 31 MARCH 1942,
CONCERNING BURNING DOWN OF VILLAGE

[Handwritten] Commander
Bakhchisarai, 31 March 1942
[Stamp]

Oberfeldkommandantur 553
Received: 1 April 1942
Department: Quartiermeister, 5651

Ortskommandantur 11/576 (V)

APO No. 26890

To : The Commander of Army Rear Area 553,

Department Quartiermeister

Reference: Commander Army Rear Area 553/Quartiermeister/
Diary No. 7441, dated 13 December 1941
Activity Report for 16 — 31 March 1942
****** *

2. Political matters — While Bakhchisarai can be called pacified,
the partisans in the neighborhood continue their evil doings as
before. Thus, it was found that they spent every night in Laki,
and that the mayor there had organized food rationing and had
set up a regular trade with the partisans. So much food was
stored there that the partisan group could have been provisioned
until the next harvest. In the course of an operation started by
the Security Service, with the support of the militia, on 23 and
24 March, 15 persons were arrested and shot. The entire place
was burned down after the population had been evacuated. * * *
[Handwritten] 1 copy to Oberquartiermeister/Qu. 2, on

1/April. [Initial] B

*******

[Illegible signature]
Captain and Ortskommandant.

312

PARTIAL TRANSLATION OF DOCUMENT NOKW-3442
PROSECUTION EXHIBIT 1600

ORDER FROM ARMY GROUP CENTER, 1 1 FEBRUARY 1943,
SIGNED BY WOEHLER, CONCERNING DESTRUCTIONS IN THE
AREA IN FRONT OF THE BUFFALO LINE*

[Stamp] TOP SECRET

Army Group Headquarters, 11 February 1948

11 copies — 1st copy

[Stamp]

Army Command 4
Received : 13 February 1943
No. 014/43

Headquarters Army Group Center

Ia/General of the Engineers

No. 5/43 Top Secret, Matter for Chiefs

[Handwritten] sent ahead by teletype.

Subject: Destructions in front of the Buffalo line

[Stamp]

Matter for Chiefs
By Officers Only!

To:

Distribution :

1. The terrain in front of the “Buffalo” line is to be destroyed
effectively by the armies with all available means. Directly in
front of the line a devastated area is to be created which is to be
as wide as possible.

2. The execution of the destructions is to be arranged in detail ;
especially, orders are to be given stating who will give the order
to carry out the destructions.

3. The road from Yukhnov to Roslavl and the autobahn [super
highway] are to be destroyed effectively when falling back on the
“Buffalo” line, so that motor traffic will be difficult for a long
time. A commander and special units are to be designated for
each of these roads, who will be responsible for preparing and
carrying out the destructions.

The 9th Army will be responsible for seeing that the autobahn
is destroyed; the 4th Army will furnish an engineer battalion to
the 9th Army to prepare and carry out destructions from
Gzhatsk to Vyazma.

• Line of defense in central sector of Russian front then held by Army Group Center.

313

4. The 4th Army will prepare and carry out a thorough destruc-
tion of the town of Vyazma.

5. It will be the duty of Air District Command “Moscow” to
destroy the airfields and their installations. The ammunition
required for this is to be requested from the General of the En-
gineers/Headquarters Army Group Center.

6. The destruction of the railways is the task of the General of
Transportation Headquarters, Army Group Center, who will
make the necessary arrangements in collaboration with the
armies.

7. The Army Signal Commander will give the instructions re-
quired to destroy the signal communications.

8. Furthermore, preparations are to be made for the troops dur-
ing their retreat to destroy all buildings, wells, and bridges, and
to mine the terrain extensively.

It is to be calculated how much material is needed for the de-
structions, and this is to be requested by the armies through
Oberquartiermeister channels, all others needing it are to request
it from the General of the Engineers/Headquarters Army Group
Center.

A copy of the requests made by the armies is to be submitted to
the General of the Engineers/Headquarters Army Group Center.

For Headquarters Army Group Center

The Chief of Staff
[Signed] Woehler

Distribution :

4th Army, 1st copy
9th Army, 2d copy
Special Staff Schaum, 3d copy
Air Force Command East, 4th copy
Air District Command “Moscow”, 5th copy
Headquarters Army Group Center/HQ Signals Commander,
6th copy

Headquarters Army Group Center/General of Transportation,

7th copy

Headquarters Army Group Center/Oberquartiermeister, 8th

copy

Headquarters Army Group Center/Ia, 9th copy
Headquarters Army Group Center/General of the Engineers,
10th copy

War Diary, 11th copy

314

PARTIAL TRANSLATION OF DOCUMENT NOKW-2981
PROSECUTION EXHIBIT 1593

EXTRACTS FROM SUMMARIES ON BANDS’ ACTIVITIES IN III PANZER
CORPS AREA AND REPORTS FROM III PANZER CORPS TO
8TH ARMY, 15 OCTOBER AND 7 NOVEMBER 1943,

ON SAME SUBJECT

Reports on Bands made by the Divisions on 15 October 19J+3

[Handwritten] War Diary 1559

*******

SS Panzcrgrenadier Division “ Viking ” — A squad of 7 men from
the 57th Infantry Division was attacked by a band in the area
west of Kreshtshatik. One member of the Wehrmacht was shot.
According to statements of the attacked, the attackers were
Russian civilians. In addition, a cable connection to a unit
adjacent on the left was cut.

Planned for 16 October 1943 —

Cleaning the band area east of the Olshanka bridge.
Burning the locality of Guta Mishirizkaya,

Hq III Panzer Corps
Section la

To: AOK 8 (priority teletype)

For information to:

3d Panzer Division
57th Infantry Division
168th Infantry Division
SS Panzergrenadier Division
223d Infantry Division

[Stamp]

Headquarters III Panzer Corps
Chief Signal Officer
Received: 15 October 1943

[Handwritten] 2453

15 October 1943
[Handwritten] 2145

2240

2255 Teletype
2400 2240

Viking”

2335

accepted transmitted 2110

893964—51 21

315

Report on Bands

*

*

*

*

*

*

*

e. Cleaning up the band area east of the Olshanka bridge.
Burning the locality of Guta Mishirizkaya. Reconnaissance in the
woods east of Tagantsha and north of Yablonoff, as well as in the
area of Buda Orlovezkaya.

la

Certified :

[Signed] von Schwerin

Lieutenant

[Handwritten] Taken care of

*

*

*

*

*

Report on Bands made by the Divisions on 7 November 19US

or

Fo

I

* * * * * * *

57th Infantry Division — a. (1) At 1800 hours 6 November, a
band of six men attacked the guard post of Buda Brochvachskaya.
We had two men killed. Twenty-seven houses in which the men
were not present in the evening, or in which ammunition was
found, were burned down. Four suspected men were shot. Mop-
ping up has not been concluded as yet.
*******

7 November 1943

Hq 111 Panzer Corps
la

[Stamp]

Hq III Panzer Corps

Chief Signal Officer

7 November 1943

accepted transmitted 2140

To: AOK 8 (priority teletype) [Handwritten] 2305

For information to:

SS Division Viking 2210

57th Infantry Division) teletype 2110

72d Infantry Division) 2245

Report on Bands

*******

2. At Buda Brochvachskaya (southern sector of the forest of
Tagantsha) bandits attacked the guard post. We had two men
killed. Twenty-seven houses in which ammunition was found

,116

or in which the men were not present at night were destroyed.
* Four bandits were shot.

*******

he

he

la

Certified :

[Signed] von SCHWERIN

Lieutenant

[Handwritten] Taken care of. (signature) Pfc

3. DEFENSE EVIDENCE

DOCUMENT REINHARDT 302
REINHARDT DEFENSE EXHIBIT 136

EXTRACT FROM THE AMERICAN "RULES OF LAND WARFARE"
CONCERNING TREATMENT OF ENEMY PROPERTY

FM 27-10

WAR DEPARTMENT
Basic Field Manual
RULES OF LAND WARFARE

Prepared under direction
of

The Judge Advocate General

United States
Government Printing Office
Washington: 1940

* * * * * * *
Treatment of Enemy Property

[Paragraph] 313. Destruction and seizure of. — It is especi-
ally forbidden * * * to destroy or seize the enemy’s property,
unless such destruction or seizure be imperatively demanded by
the necessities of war ( H.R. , art. 23, par. ( g ) ).

314. General rule as to war right to seize and destroy prop-
erty . — The rule is that in war a belligerent may destroy or seize
all property of whatever nature, public or private, hostile or
neutral, unless such property is specifically protected by some
definitive law of war, provided such destruction or seizure is
imperatively demanded by the necessities of war.

****** *

317

DOCUMENT REINHARDT 303
REINHARDT DEFENSE EXHIBIT 135

EXTRACT FROM THE "BRITISH YEARBOOK OF INTERNATIONAL LAW",
1944, CONCERNING VIOLATIONS OF THE LAW OF WAR

The British Year Book of International Law
1944

Humphrey Milford
Oxford University Press

% He * H« H« * *

The Law of Nations and the Punishment of War Crimes
by Professor H. Lauterpacht, M.A., LL.D.

Whewell Professor of International Law in the University of

Cambridge

*$$***$

“Such acts as general devastation * * * may supply ample
reason for condemnation and protest; * * * they may, at the end
of the war, justify the imposition of collective sanctions by way
of compensation or otherwise as distinguished from individual
penalties of a criminal nature. But criminal proceedings before
the municipal courts of the victor may seem to many a question-
able method of removing outstanding doubts and laying down
authoritatively the existing law on subjects of controversy.

“Total war has altered the complexion of many a rule. At a
time when the “scorched earth” policy, with regard to the bel-
ligerent’s own territory, has become part of a widespread prac-
tice, general destruction of property ordered as an incident of
broad military strategy will not properly form the subject-matter
of a criminal indictment.”

EXTRACTS FROM TESTIMONY OF DEFENDANT WOEHLER 1

DIRECT EXAMINATION

* * H« * * * *

Dr. Rauschenbach (counsel for the defendant Woehler) : Now,
Document NOKW-631, Prosecution Exhibit 568, 2 is a document
connected with the Security Service, but as it concerns the seizure

1 Complete testimony is recorded in mimeographed transcript, 10-11, 14-17 June 1948; pp.
6675-6083.

a Reproduced in part above in section F2. Translation of this document appears in full in
section VIII B 5 b, vol. X.

318

of property of the civilians, and not killings, it belongs rather
to this context. It is a report by the Security Service, signed by
Ohlendorf, directed to the Headquarters of the 11th Army, and
reference is made to a telephone conversation between you and
an SS captain about confiscated watches. The Security Service
reports that the watches confiscated in the course of the anti-
Jewish actions had been properly entered as received. As you
had this telephone conversation with the Security Service officer,
will you tell us what led up to this report by Ohlendorf?

Defendant Woehler: I recall in this wii ter of 1942, Field
Marshal von Manstein came to me one day rather excitedly and
said, “Listen, I want to know what has become of the property
which must have been seized during the resettlement of the Jews.”

Q. May I interpose just one question — what did both of you
understand by that term “resettlement” at the time?

A. At the time I understood the term “resettlement” to mean
what every unbiased person would understand by resettlement
or evacuation. It was only here in Nuernberg, when I was a
witness and a defendant for the first time in 1946, that I learned
from the Security Service records, which were available to me
at the time, what this “resettlement” meant.

* H* ❖ * # *

Q. We will now revert to the conversation you mentioned be-
tween Field Marshal von Manstein and yourself, about those
watches. What did von Manstein tell you to do?

A. He told me to talk to Ohlendorf. The Field Marshal wanted
to know where those things were that had been left behind, and
how they were administered.

CROSS-EX AMIN A TION

H: * * $ *

Dr. Horlik-Hochwald : Witness, I asked you whether you, on
15 October and 7 November 1943, were Commander in Chief of
the 8th Army?

Defendant Woehler: Yes, I was.

Q. Will you have a look at page 2 of the original ( NOKW-2981 ,
Pros. Ex. 1593).* It is a report from the III Panzer Corps dated
15 October 1943, where it is reported under the heading “Reports
on Bands” that the locality of Guta Mishirizkaya was burned
down. Did you hear of this incident?

A. I haven’t found this sentence yet.

* Document reproduced above in section F 2.

319

Q. It is on page 2 of the original, Witness. That should be
down — possibly the last — it is paragraph e, the last paragraph.
Did you find that?

A. Yes, the burning of Guta Mishirizkaya was quite definitely
necessary for military reasons, because the bands were dependent
on such localities for their depots, etc., and in addition, also to
hide themselves. Without being able to remember this individual
incident, I think that there was a very good military justification
for a locality which was in the partisan territory, and which
was expressly designated as such to be burned down, if it was
a military necessity. If one reads the previous reports which are
contained in the same document, one gets a slight insight into
what could happen on one single day to one single corps in the
way of band activity — what was possible as regards surprise
raids, and other band activities. I think that there was a military
necessity here for this.

Q. Will you then turn to page 5 of the document and look at
the reports on bands made by the divisions, and I think it is the
57th Infantry Division on 7 November 1943. Look at letter a,
Arabic 1. It says that, “At 1800 hours, 6 November, a band of
six men attacked the guard post of Buda Brochvachskaya. We
had two men killed. Twenty-seven houses in which the men were
not present in the evening, or in which ammunition was found,
were burned down. Four suspected men were shot. Mopping up
has not been concluded as yet.” If you look at page 6 of the
original you will see that the III Panzer Corps gave a similar mes-
sage to the 8th Army with the only differentiation that instead of
four suspected men were shot, it is said here four bandits were
shot. The message is of the same date. Did you receive any
information about the burning down of these 27 houses, of the
killing of these four suspects?

A. Well, I can't remember it. I can only think that here too,
because these’bandits lived in these houses and were not there in
the evening, that it was a military necessity to burn down these
houses so that the partisans should not have the possibility of
hiding there again. With regard to the suspected men who ap-
pear here, I say the same as I have already repeatedly said — that
it is my firm conviction that the suspicion of being connected
with partisan activity was confirmed with regard to these men.
I can comment on the report of the III Panzer Corps briefly
because it talks about four bandits who were shot. I don’t know
whether I may be allowed to read this page?

Q. Surely, you can read every part of the document you want
to read.

A. Here it says, “Here, too, German and Russian uniforms,

320

German and Russian machine guns, tommy guns, and hand
grenades, and two antitank rifles were found.” I would like to
stress the German uniforms in which the partisans fought.

* * * * * * *

Q. Do you remember having issued an order for the destruc-
tion of Vyazma?

A. No. For the simple reason that as army group chief of staff,
as I explained in detail yesterday, I was not authorized to issue
any orders — let alone an order for the destruction of a city. The
“Buffalo” movement was a large scale retreat movement on the
left wing of Army Group Center, which I am not going to explain
in detail. It had been ordered by top levels, and had to be
carried out for military reasons, in order to save forces and to
be able to form new reserves. All these “Buffalo” movements
were carried on for months, both theoretically and practically.
This is a war diary entry, if I’m not mistaken, dated 13 March
[February] 1943, and it [the diary] was concluded on 31 March
1943. It is possible that I had this telephone conversation with
the commander in chief of the 4th Army. If I said, “The town
of Vyazma is to be destroyed”, then —

Q. May I interrupt you? I can also hand you the order,
NOKW-3442, which I offer, Your Honor, as Prosecution Exhibit
1600.* So this, is the written order of yours where, under para-
graph 4, this provision appears?

Presiding Judge Young: Admitted as part of the cross-exam-
ination.

Dr. Horlick-Hochwald : So possibly. Witness, we can shorten
this?

Defendant Woehler: Very well.

Q. As you have both documents now before you?

A. We can make it very brief. As it says here under paragraph
4, the thorough destruction of Vyazma was to be prepared and
carried out by the 4th Army, and I signed this order as chief of
staff [of Army Group Center]. It was upon the order of my
Commander in Chief, Field Marshal von Kluge. Even today I am
convinced that this destruction of the remainder of Vyazma which
the Russians had left — there were only a few houses and a few
cellars which were destroyed by the 3d Panzer Army — I am con-
vinced that this was a military necessity, so that in winter — we
are talking now about 11 February — the pursuing Russians would
be deprived of all accommodation and shelter. Therefore, it was
a military necessity which prompted this order, an order of my
Commander in Chief, Field Marshal von Kluge, which I signed as
I concede.

*******

* Ibid.

321

REDIRECT EXAMINATION

* ❖ * * * * *

Dr. Rauschenbach : Did you see any reason to assume that
the watches in question* were not obtained through confiscation
from living people but were instead the property of dead persons?

Defendant Woehler: I saw no reason to assume that these
watches were the property of dead persons, and even today I
believe that if that had been the case, the number of watches
would have been larger.

Q. Do you know whether German prisoners of war, for instance
while they were prisoners of the Americans, were deprived of
their watches?

A. Yes.

Q. Do you know of any such instances?

A. Yes, I do.

Q. But these prisoners of war are still alive, aren’t they?

A. Yes.

* * * * * * •

* See Document NOKW-631, Pros. Ex. 568: and Document NOKW-323S. Pros. Ex. 1605.
reproduced in section F 2.

322

VIII. PHOTOGRAPHIC REPRODUCTIONS OF
DOCUMENTARY EVIDENCE

Eexr « t MeJ-aeverzanren dsi * errii.cxi tuug von oaoovagesriippo * '-/««.

Durch die &czug everfvg ung iet die Bebandlung der von deutecbea Truppen
gestellten Angehdrigen feindlicher Kommando-tJnternehmea geregelt*

Da ibre - auch nur vortlbergeheade - Verwahru ng in milit&rischer Cbhut
(Kriegsgefangenenlager) verbot^n ist, gelten sie nioht ala Kr.Gef .

Es wird ujh Entecheidung gebeten, ob die Angehbrigen solcher feindl*
Koiaciando-Unterixebjsungen ale get alien© feindl* Wehrr&chtangefadrige -
wie z*B* abgeseboesene feindl*flieger - gelten und nach den zwischen-
staatliohen Abmachungen als aolefae an den Feindataat gemeidet werden
eollen Oder ob in diesen Fallen jede Meldung des Todeafalle zu unter-
ble JV ~

Document NOKW-004, Prosecution Exhibit 14911], on reporting deaths of
enemy Commandos, signed by General von Graevenitz, Chief of Prisoner
of War Affairs under defendant Reinecke . Defendant Warlimont’s initial
“W” appears in upper right near date line. Translation appears on p. 92.

893964 0—51 22

323

J Ausferti ym£&n
.Auofertijung.

FJUQu,, den 25*5.1943,

©ct}$tme Kommancofodj^

den 25.5.1943;

Bosun Cchrb. Chef Krlecsgcf. As* ? f 24* 76 All^.(TIa)

71 r* 90/43 e.Kdoo* von 13*5.43.

Betr* i Ho 1 d c ve r f a hr e n bci Vcmiehtnns von Sabotagetruppc.

Der Be f chi von 18*10.42 £eht davon cue, doss die
~ it^lieder f clndlicher otikota^etrupps fUr uns koine Jol-
dnten, aondern la Grunde senoz&cn £ cm cine Yerbroeher
eind und darn?. ale cole he bchendelt y?orden rTnnon.

Each Anaicht t* i't esr hlcrnech auo^e cl loaaen,
^cmMon dec. Ffifcrerbefehl bchandelte .*n hot euro dad nr oh els
'oldnten ansaerkennon, ihr Tod mch den far go fal lo-

ne feindlichc Ooldaten neltcnden Best! cr»un~Gn r>n len
Be indata at ^oncldet wlrd* T3t* vertritt also den Ctand-
punkt, d 033 jerle reldim/j :Ics Todesfallen su unterblclbcn
hat.

FUr cine Kntiche idanr; dieoer Fra^c 1st >TCt. nieht
suat 2 ndig, da cg aich un clnon P*fhrorbe "chi inndclt. '6
maoo vielmohr Chef Erie * 030 f. tiberl reason blcihcn, die cr-
fordorliehe Kntocheidunj unnlttelbar Ubor Ohof \ ■< und
Chef OK herboi&ufiUiren.£,

V A-

Document NOKW-004, Prosecution Exhibit 149[2], defendant WarlimonVs
answer to reporting of commando deaths . His initial “W” appears at lower
right next to date “27/5”. Translation appears on page 93.

GoteRw ICannsidkmKh*

Aaefartiguage*
►Autjfer tigumg

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Haapt verb. Stab 564 (dor oh Kurier)

vto.Mii

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Trvn

8a.tr* l Beh8"dltiMg von Xde*-A*geh5rige*.*

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bleibt dor BafehX ^ilhrere liber die Varnicbtuag to*
Terror- u&d Sabotugetrupps vom 18,10.42 roll aufreobt
erhaltea*

Ausgaaomme* b efba* feisdlieba 8oidat«* 1* U K ifor» i*
ummitteXbare* Kajapfgebiet dea landekopf as, d.lw im ^eroicfc
der i* rorderer Linie k&rapfesde* CiTlaioxoa. so«ie
der Reserve* tie eirsehl. Cre*.Xdos« # gaia&3 *iff*$) dea
Orumdl.BefehXa vom 18. 10.42*

2.) Alla euBerhelb dea um&ittoXbare* Ka am f lw r g g l *3 B*geb letea

a*getroffa*e* AjigohdrAgaa vo» Terror- usd Sabotage truppa,
ztt deaea gra»ds&tzXio& aXle 2?allsohiriRspri*ger racbae*,
fi&*d ia Kaapf ^iederzumao ham. J* So*derf&lle» aind sle de*^
SO zq libergebeR*

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eiasesetztan Trapper, si»d aber die Pfllcbt dor ^er»iehtaag
fei&dl. Te rr or~ and Sebotagetruppa kurs usd fetiadig aaoh do*
bierftir eriaaeose* Be»timuBgei zu uBterriehte*.

4.) Ob.^eat maldet ab sofort ttglich, wieviel Saboteur* auf
diese Weiae liquidiert sisd. Day gilt vor allea buch
fUr die Uataraebinaa der KilitSrbefeblsha or. Die Zahl eoXX
t&giich ia lebraachtbericbt bekaaatgegebe* werdea, on damlt
elm* abschreckemde Uirktusg auszutibe&* eie sie echo* gerea-
liber d«* frliberea J5<>jma*dc-tf»t#r*ehjBea auf gieioha ieiae
orreloht ist»

hxaa&z — JSbkdaUtoAagmpfl

Die Meiduftge* si ad i* der Tagesoaldung zu erf ease**

Mr^X!

TOS! 29*6*44

f-

Document NOKW-213, Prosecution Exhibit 163, concerning continued appli-
cation of the Commando Order after Allied landings in France . Transla-
tion appears on page 108 .

325

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Document NOKW-1615, Prosecution Exhibit 257[1], a teletype concerning
evacuation and casualties of prisoners of war, initialed by defendarit von
Roques . Initials “vR ” appear at top center in column headed “an” [to].
Translation appears on page 30.

326

V/3 17 c / 3

Dor Bofohlshaber
08 riiekw.H.Gob.S tt d

H.Qu., dou 26. 10. 41*

T a g o s b c f o h 1

Dor Abschub dor Kriegsgofangoncnmasson aus dcr

grosscn Omfassungsachlacht im Dnjopr ~ Djcana - Began 1st
trots iannohor j&rschworn.issc plannajsig und scitgcrccht bo-
w&ltigt wordon. Stir dioso Leistung sprccho loh alien botol-
ligton DienststGllfcn caclnc Ane-rlzormung aus, bwsondors dor
24 . I#«* D. , dwii ILr io gsgof angonc ■. ibo adaiit on und don
Bulags.

Document NOKW-1615 , Prosecution Exhibit 257 [2], an “Order of the Day ”
signed by defendant von Roques , complimenting subordinate units on evacu-
ation of prisoners of war . Translation not reproduced in this abridgement.

General dcr Infant orio

Vortoilor ;

Div. u* Era. Brig. 202
Kr* Gof. Bcz. Kdt. N u. E
odntl. Dulagu
Ila
Qu

K. 2?. B.

327

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n. 7$C /V {'tc'Cu

Generalkommando XXVIII. A. K.

K. Gef • St • Liaaino, 6. 11. 19*1

/

Abt. I& Nr. 1552/41 geheia

In der Anlage wind ein vom Pdhrer gebilligter Befehl
elnes A.O.K. *s ubersandt, der das Verhalten der Truppe im
Oatraum behandelt. Auch im Korpsbereich liegea die Verhalt-
nisse im allgemeinen so, d&B die Soldaten zu grdBerer Harte
erzogen werden mite sen.

Auf folgende Punkte wird nochmals hingewieseni

1. ) Jedes Stiick Brot, das an die Zivilbevolkerung aasgege-

ben wird, fehlt in der Heimat.

2. ) Auf jeden Zivilisten, auch auf Prau Oder Kind, der unse-

ren EinschlieBungsring um Leningrad iiberschreiten will,
1st zu echieBen. Jeder Eseer in Leningrad weniger, ver-
Ifcngert den Widens t and dart, und jeder Fliichtling n&igt
zu Spionage und Partisanen; all* dies kostet deutsche
Soldatenleben.

3. ) Deutsche Kraftf ahrzeuga und Fahrzeuge dienen nicht zur

Befdrderung russischer Eevolkenmg.

Verteileri

bis zu den B&tl. (Abt.)

Document NOKW-341 1, Prosecution Rebuttal Exhibit the letter of

transmittal for the “Reichenau” order with signature of Major General
Kratzert, acting commander of the XXV 11 1 Army Corps , a subordinate
unit of the 18th Army, commanded by the defendant von Kuechler. Trans-
lation appears in Volume X.

1.7,

328

Abschrift von Abschrift I

Arme eobe rkomnand o

A.H.Qu., den 10. 10. 1^1

G e h e 1 m !

Setr . i Verhalten der Truppe im Ostraum.

Hinsichtlich des Verh&ltens der Truppe gegeniiber dem bolschewisti-
achen System bestehen vielfach noch unklare Vorstellungen.

Das wesentlichste Ziel des Feldzuges gegen das jiidiscfc-bolschewisti-
sche System i3t die vollige Zerschlagung der Machtmittel und die
Ausrottung des asiatischen Einflusses im europaischen Kulturkxeis.

Hierdureh entstehen auch. fur die Truppe Aufgaben, die uber das her-
gebrachte einseiuige Soldatentum hinausgehen. .Der Soldat ist im
Ostraum nicht nur ein Kecipf er nach den Regain der Kriegskunst, son-
dern auch Trager einer unerbittXichen volkischen Idee und der Kacher
fur aXXe Bestialitaten, die deutschem und artverwandtem Voikstum
zugefugt wurden.

DeshaXb muB der Soldat fur die Notwendigkeit der harten, aber ge-
rechten Shhne am jiidischen Untermenschentum voiles Verstandnis ha-
ben, Sie hat den weiteren Zweck, Erhebungen im Riicken der Wehr-
macht, die erfahrungsgemuB stets von Juden angezettelt warden, ira
Keime zu ersticken. Der Kampf gegen den Feind hinter der Front
wird noch nicht ernst genug genommen. Immer noch werden heimtuk-
kische, grausane Partisanen und entartete Weiber zu Kriegsgefange-
nen gemacht, immer noch werden halb uniformierte Oder in Zivil ge-
kleidete Heckenschtttzen und Herumtreiber wie anstandige Soldaten
behandelt und in die Gefangenenlager abgefiihrt. Ja, die Gefangenen
russischen Offiziere erzahlen hohnlachelnd, daB die Agenten der
Sow jets sich unbehelligt auf den Straflen bewegen und Kaufig an den
deutsclien Feldkiichen mitessen. Ein solches Verhalten der Truppe
ist nur noch durch vollige Gedankenlosigkeit zu erklaren, Dann ist
es aber fur die Vorgesetzten Zeit, den Sinn flir den gegenwartigen
Kampf wachzurufen.

Das Verpflegen von Landeseinwohnorn und Kriefispefangonen , die nicht
im Dienstc der WehHi'achb stehen, an Truppenkucnen ist elne ebenso
miBverstandene Menschlichkeit wie das Verschenken von Zigaretten
und Brot. Was die Heimat unter groBer Entsagung entbehrt, was die
Fdhrung unter groBten Schwierigkeiten nach vorne bringt, hat nicht
der Soldat an den Feind zu verschenken, auch nicht, wenn es aus
dor Beute stammt. Sie ist ein notwendiger Teil unserer Versorgung.

Die Sowjets haben bei ihrem Ruckzug haufig Gebiiude in Brand ge-
steckt. Die Truppe hat nur soweit ein Interesse an Loscharbeiten,
als notwendige Truppenimterkunfte erhalten werden miissen. Im
iibrigen liegt das Verschwinden der Symbole einstiger Bolschewisten-
herrschaft, auch in Gestalt von Gebauden, im Rahmen des Vernichtungs-
kampfes. Weder geschichtliche noch kiinstlerische Riicksichten spie-
len hierbei im Ostraum eine Rolle. Fur die Erhaltung der wehr-
wirtechaftlich wichtigen Rohstoffe und Produktionsstatten gibt
die Filhrung die notwendigen Weisungen. Die restlose Kntwaffnung
— r Bevolkerung im Riicken der feuernden Truppe 1st mit Riicksicht

Document NOKW-3411, Prosecution Rebuttal Exhibit 14[2], page one of the
“Reichenau” order . Translation appears in Volume X.

329

- 2 -

auf die langen, empf indlichen Nachschubwege vordringlich. Wo mbg-
lich, sind Beutewaffen und Munition zu bergen und zu bewachen#
Erlaubt dies die Kampflage nicht, so sind Waffen und Munition un-
brauchbar zu machcn. Wird iia Riicken der Axmee Waffengebrauch eln-
zelner Partisanen festge3tellt, so ist mit drakoniachen MaBnahaen
durcbzugreifen, Diese sind auch auf die mannliche Bevolkerung
auszudehnen, die in der Lage gewesen ware, Anschlage zu verhiiw
dem odor zu melden. Die Teilnahmslosigkeit zahlreicher angeblich
sowjetfeindlicher Elemente, die einer abwartenden Haltung ent-
springt, muB einer klaren Entscheidung zur aktiven Mitarbeit gegen
den Bolschewismus weichen. Wenn nicht, kann sich niemand beklagen f
als Angehoriger dec Sowjet systems gewertet und behandelt zu werden.
Der Schrecken vor den deutschen GegenmaBnahmen muB starker sein
als die Drohung der umherirrenden bolschewistischen Restteile,

Fern von alien politischen Erwagungen der Zukunft hat der Soldat
zweierlei zu errullen:

1 • ) Die vollige Vemichtung der bolschewistischen Irrlehre, dee
5owjetstaates und seiner »7ehnaacht ,

2. ) die erbarmungslose Ansrottung artfremder Heintnlcke und Grau-

samkeit und a emit die sicherung dec bebens der deutschen

Nur so werden wir unserer geschichtlichen Aufgabe gerecht, das
deutsche Volk von der asiatisch-.jiidischen Gefahr ein fur allemal
zu befreien.

Document NOKW-3411, Prosecution Rebuttal Exhibit 14[3], page two of the

gez.: Unterschrift.

F.doR.d.A. s

a;

Oberleutnant

“ Reichenau ” order . Translation appears in Volume X,

330

IX. FINAL ARGUMENTATION

A. Introduction

Only a small fraction of the final argumentation at the close
of the trial has been reproduced below. (Sections B through G).
The closing statements of the prosecution and the defense required
4 days to deliver, the prosecution’s closing taking less than one
full day and the defense closings taking more than 3 days. In
addition voluminous briefs were filed by both the prosecution and
defense which total hundreds of pages. Argumentation concern-
ing all counts of the indictment appears in Section III, Opening
Statements of the Prosecution and Defense, and on the charges
of aggressive war, extracts from the final arguments appear in
Section V, Crimes against Peace — Further Argumentation on the
Charges of Aggressive War (Sections III and V, appear in vol. X.)

In this concluding section of argumentation, emphasis has
been given to questions which usually applied to more than one
type of the charges or to more than one specification of the indict-
ment. Among the topics covered are a number of the special
arguments which include : the effect of superior orders, the justi-
fication of alleged military necessity, the principle of tu quoque ,
the responsibility of a chief of staff, the nature of command
authority and executive power in the areas occupied by the Ger-
man armed forces, and the international law applicable to pris-
oners of war, partisans, and civilians. It has been impossible
within space limitations to reproduce much of the testimony
and many of the exhibits cited in the arguments. For these, the
complete record in the Library of Congress may be consulted.

B. Extracts from the Closing Statement of
the Prosecution*

COUNTS TWO AND THREE — WAR CRIMES AND CRIMES
AGAINST HUMANITY

Mr. Fulkerson : The evidence which the prosecution has sub-
mitted in support of the charges in count two and three of the
indictment is very extensive. We shall not attempt today to
describe again the terrible events which the documentary evi-
dence so eloquently portrays. The criminal responsibility of each
defendant under counts two and three will be established in

* Complete closing statement is recorded in mimeographed transcript, 10 August 1048. pp.
9505-9620.

893964—51 23

331

detail in the individual briefs. At this time we will content
ourselves with calling to the Tribunal’s attention only such por-
tions of the evidence as are relevant to meet the conglomerations
of vague, implausible, and mutually contradictory defenses which
have been raised under these counts.

A. THE “COMMISSAR ORDER”

Under subdivision A of count two of the indictment, dealing
with the so-called Commissar Order, Sperrle and Schniewind are
not charged. The responsibility of Warlimont and Lehmann in
connection with the drafting and distribution of the order, as
well as the responsibility of Reinecke for the execution of the
order at prisoner of war camps has, we submit, been clearly estab-
lished. The remaining eight defendants — von Leeb, von Kuechler,
Hoth, Reinhardt, von Salmuth, Hollidt, von Roques, and Woehler
are all charged with the distribution and execution of the Com-
missar Order in their capacities as field commanders. All of
them have resorted to substantially identical excuses and ex-
planations. Once again, we think that these defenses can be
discussed most expeditiously and clearly by examining the evi-
dence with respect to a few individual defendants and for this
purpose we will deal with von Leeb, von Kuechler and Hoth.

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I. VON LEEB

None of the defendants, including the defendant von Leeb,
denied the unlawful character of the Commissar Order. (TV. p.
2346.) Nor does von Leeb deny that it was distributed within
his army group. On the witness stand, he defended his conduct
with respect to the Commissar Order by testimony to the effect
that —

a. He protested against the issuance of the Commissar Order
to Brauchitsch and Keitel ( Tr . pp. 234-6-2349) .

b. He did not himself pass down the Commissar Order to the
Fiftieth Corps or the army group rear area, which were directly
subordinated to him (Tr. p. 2349) .

c. The Commissar Order was transmitted by the High Com-
mand of the Army directly to the three armies under his com-
mand — the Sixteenth Army, the Eighteenth Army, and Panzer
Group 4, which was the equivalent of an Army — and that he
had no authority to prevent the further passing down of the
order by the three armies (Tr. p. 2350).

d. He gave oral directions to the units subordinate to him that
the order was not to be carried out, and thereafter “hoped that it
would not be carried out to its full measure” (Tr. pp. 2350-2352) .

332

e. He was never informed of the reports submitted by his sub-
1 porlordinate units showing that the order was being carried out ( Tr.

atior.. p. 2361).

fliicl /. The reports of commissar shootings in the record in this case
only cover a small percentage of all the commissars, and therefore
order must not have been carried out in most instances (Tr.
235U-2356) .

ii. g. Many, if not all, of the reports of commissar shootings were
iari deliberately falsified (Tr. p.2359).
in h. Many of the commissars reported as shot were, in fact, killed

battle. (Tr. p. 2357.)

The prosecution suggests that these so-called “defenses” are
>tab miserable fabrications, and that the record proves incontrovertibly
the Commissar Order was distributed and carried out within
von Leeb’s Army Group, with von Leeb’s knowledge, and resulted
Offi- in the outright murder of numerous prisoners of war. We will
I of dispose of these defenses seriatim.

a. The fact that von Leeb protested against the order to von
Brauchitsch and Keitel is, of course, no defense if he in fact dis-

:vi- tributed and executed the order. Like his memorandum to von
his Brauchitsch advising against the invasion of Belgium and Holland,
these protests merely establish conclusively that he was fully
i aware of the wrongful character of his actions.

b. Whether or not von Leeb personally passed the Commissar
Order to the commander of his rear area, it is perfectly clear that

^ the order reached the rear area, because on 19 December 1941,
?• the 281st Security Division, then subordinated to the rear area,
111 reported that two commissars had been shot. (NOKW-215J),, Pros.
Ex. 275.) The headquarters of von Leeb’s Army Group North was
the only headquarters which could have reissued the Commissar
Order to the rear area. The Fiftieth Corps also reported shootings
!r of commissar's. (NOKW-21 79, Pros. Ex. 65; NOKW-2207, Pros.

Ex. 89.) Von Leeb sought to explain this on the ground that the
e Fiftieth Corps was, for a time, subordinated to the Sixteenth
y Army, and that the Sixteenth Army may have passed the Commis-
sar Order to the Fiftieth Corps at that time. (Tr. pp. 2360-2361.)
Whether von Leeb himself passed the order to the Fiftieth Corps,
or whether, knowing that the Sixteenth Army would pass the
order to them he took no action to prevent this, seems to the prose-
cution a totally academic question.

c. Generals Busch, Hoepner, and the defendant von Kuechler,
who commanded the three armies under von Leeb’s Army Group,
were directly subordinate to von Leeb in the chain of command.
Von Leeb testified that all three of them shared his own view that
the Commissar Order was unlawful. (Tr. p. 2351.) Von Leeb

333

could have instructed them not to pass it down, and there is abso-
lutely no basis in the record for assuming that the three generals
would not have followed his instructions. If we are to believe
von Leeb’s testimony that he himself did not pass the order to the
Fiftieth Corps and the rear area, we must also conclude that
Busch, Hoepner, and von Kuechler could have behaved in the same
fashion. But there is no evidence in the record that von Leeb made
any attempt to prevent the army commanders from disseminating
the order.

In fact, the record clearly establishes that von Leeb’s Army
Group headquarters issued directives to the subordinate armies
in connection with the execution of the Commissar Order. Von
Leeb’s own chief of staff signed and distributed to the armies and
the rear area an order dated 2 July 1941, directing them to destroy
all copies of the Commissar Order, and to refrain from shooting
commissars who had previously escaped detection and were work-
ing in labor detachments with other prisoners. (NOKW-3136,
Pros . Ex. 1547 ) . Another document shows that von Leeb’s Ic offi-
cer, Jessel, who testified in this proceeding, directed the Ic officer
of von Kuechler’s Eighteenth Army to screen prisoner collection
points for commissars who had escaped detection by removing
their insignia. (NOKW-3H9, Pros. Ex. 1553.)

d. While there is no reason to doubt von Leeb’s testimony that
he disapproved of the Commissar Order, there is absolutely no
evidence that he took any action which was effective, or could have
been expected to be effective, to prevent its execution within his
army group. Von Leeb, like almost all other German generals
who have been charged with or questioned concerning their part
in the Commissar Order, claims that he gave oral instructions
that it should be disregarded. But since the documents in the
record clearly establish that numerous commissars were shot by
units under Army Group North pursuant to the order, it is clear
that either von Leeb gave no such oral instructions or that they
were totally ineffective.

e. Von Leeb’s testimony that he did not learn of the reports
concerning the shootings of commissars pursuant to the order is
totally incredible. If we are to believe von Leeb’s statements that
he repeatedly protested against the order to von Brauchitsch and
Keitel, that he expressed his views to the subordinate army com-
manders, and that upon other occasions at the front he expressed
his disapproval of the order and made inquiries concerning its
effect (TV. pp. 2351-2352 ), then it stands to reason that the staff
of the army group must have known that von Leeb was deeply
concerned about the order and would surely have brought to his
attention the reports showing that it was being executed in spite

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of his own oral instructions. But, in any event, as was rightly held
by Tribunal V in the Hostage Case,* (Case No. 7, Tr. p. 101*61) —

An army commander will not ordinarily be permitted to deny
knowledge of reports received at his headquarters, they being
sent there for his special benefit. Neither will he ordinarily be
permitted to deny knowledge of happenings within the area of
his command while he is present therein. It would strain the
credulity of the Tribunal to believe that a high ranking military
commander would permit himself to get out of touch with cur-
rent happenings in the area of his command during wartime.

/. Von Leeb’s argument concerning the percentage of captured
commissars covered by the reports of shootings is an especially
weird fabrication. He testified that two of the armies under him —
the Sixteenth and the Eighteenth — captured over 200,000 pris-
oners, estimated that, for 200,000 Russian prisoners there should
have been 2,000 to 2,500 commissars, and contrasted this figure
with the 96 commissars covered by the reports of shootings. (Tr.
pp. 2351*-2356.) From this, he concludes that the Commissar
Order was carried out only occasionally.

It is true that, in the setting of this case — with millions of Jews
being slaughtered and hundreds of thousands of Russian prisoners
dying of exhaustion and starvation — the figure 96 does not loom
very large. But the suggestion that responsibility for 96 murders
is something to be passed over lightly is, we submit, monstrous.
Furthermore, von Leeb’s elaborate and speculative calculations
are shown to be entirely without foundation by the very evidence
which the defense submitted. By no means all of the commissars
who had been fighting with the 200,000 prisoners were captured
alive; many of them were killed in action. The defense witness
Gersdorff testified that many commissars committed suicide rather
than suffer capture. (Tr. p. 2179.) He also testified that the
Commissar Order became known on the Russian side (Tr. p. 2160)
and that thereafter most of the commissars removed their insignia
in an effort to avoid detection (Tr. p. 2161*) and were not recog-
nized as commissars by the troops. This testimony is confirmed
by the entry in Haider’s diary for 1 August 1941, which reads
(NOKW-31l*0, Pros. Ex. 1359), “Treatment of captured political
commissars (most of them are not detected before arrival in PW
camps) ”. Considering that commissars were being killed in battle,
committing suicide, and disguising their identity, and that no
doubt the prosecution’s collection of reports of commissar shoot-
ing is far from complete, von Leeb’s calculations are seen to be
worthless.

* United States vs. Wilhelm List, et al., Case No. 7, Vol. XI.

335

U- When desperately pressed, men are often driven to incon-
sistencies, and von Leeb’s testimony that the reports of commissar
shootings were false reports is a good example of just such an
inconsistency. He suggested that the reports were concocted in
order to cover up the nonexecution of the Commissar Order, by
lulling the higher authorities into the belief that it was being
carried out. (Tr. p. 2359.) Yet, only a few minutes before he
had argued vehemently that the reports of his Sixteenth Army,
which covered the shooting of only 17 commissars out of an esti-
mated 1,200 to 1,500 captured, “reveal of necessity that the order
on a whole was not carried out.” (TV. p. 235U.) If these reports
show so clearly that the Commissar Order was not being carried
out, it is impossible to believe that they were fabricated for the
purpose of deluding someone into thinking that it was being car-
ried out. Surely, in fabricated reports, the number of commissars
reported executed would have been set high enough to carry con-
viction, rather than so low as to suggest the probability of general
disobedience.

It is abundantly clear, in short, that the reports of commissar
executions are not “faked”, but are entirely trustworthy reports
of commissars executed. What are “faked” are not these reports
but both of von Leeb’s defenses with respect to percentages (/)
and fabricated reports ( g ) ; these defenses are not only spurious
but mutually inconsistent.

h. Von Leeb’s final contention is that the reports do not show
commissar executions, but only commissars killed in battle. These
reports, chameleon-like, now have three natures, each inconsistent
with the other two. This latest guise is particularly transparent,
and is disproved by the very wording of the reports. Thus, many
of them carefully distinguish between commissars “shot”
(Erschossen) and “killed in action” (Gefallen). (NOKW-2117,
Pros. Ex. 61.) On 27 September 1941, the XXVIII Corps of
von Kuechler’s army reported (NOKW-2096, Pros. Ex. 88) :

“On 25 September, the Battalion Commissar Kanajev (110th
Railway Protection Regiment of the 2d NKVD Division) was
found asleep on the bank of the Tossna near the mouth of this
river. He was taken prisoner and shot after a thorough
interrogation.”

Other reports by the same corps stated (NOKW-1580, Pros. Ex.
670) :

“On 18 and 19 September, troop operations were carried out
in the woods of Nove Lissine by the corps signal battalion and
many prisoners were brought in. Among the prisoners was a
commissar who claimed to be an Intendant of the second rank.

336

It was possible to convict him by papers found on his person
and he was shot.”

These are a few examples only of many reports which, by their
wording, completely disprove von Leeb’s contention that these
commissars were killed in battle, and prove beyond a shadow of a
dnjdoubt the obvious fact that when commissars were reported “shot”,
“liquidated”, or “taken care of”, it was meant that the commissars
had been executed after capture pursuant to the clear language
of the Commissar Order.

2. VONKUECHLER

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The defendant von Kuechler’s course of explanations with
regard to the Commissar Order began in June 1946, at which time
he signed an affidavit under oath which was submitted to the
International Military Tribunal in connection with the indictment
of the General Staff and High Command as a criminal organiza-
tion. In this affidavit, von Kuechler swore (Tr. pp. 2923— 2 A) :
“Commissar Order — I never held this order in my hands;
whether it ever reached my agency, I do not know; whether
and in what manner troop commanders were informed of it,
I cannot state.

* 3|c % if. * * *

“My then commander in chief, Field Marshal von Leeb, I met
several times on the battlefield. We never discussed an order
concerning special measures against political commissars.”
Faced with the documentation in the record of this case, there
has been prodigious sharpening of von Kuechler’s recollection.
On the witness stand here he clearly remembered that he received
the order direct from the High Command of the Army, that he
found the order repugnant, that he knew the army group comman-
ders shared his views, that he immediately discussed the order
with von Leeb “whom I met more frequently in those days”, that
he caused his chief of staff to lodge a protest with the chief of staff
of the army group, and that he passed it down to his subordinate
commanders at a “tactical conference which had already been
called at Tilsit in East Prussia”. (Tr. pp. 2829-31).

Von Kuechler’s defenses are, in general, the same as those of
von Leeb. He testified that, at the conference with his subordi-
nate commanders, he “expressed repudiation” of the order and
advanced the opinion that it would be detrimental to discipline
(Tr. pp. 2831-32) ; that he never learned that any commissars
were being shot pursuant to the order (Tr. p. 2833) ; that his Ic
officer (Jessel) never showed him any of the reports concerning
the shooting of commissars (Tr. pp. 2833-35) ; and that probably

337

the commissars reported shot were in fact killed in action. (TV.
P- 283U). He adopted Leeb’s argument that the low number of
commissars reported shot shows on its face that the order was
not carried out. In fact, his testimony follows Leeb faithfully
from inconsistency to inconsistency.

Von Kuechler admits that he passed the order down to his sub-
ordinate commanders ; he claims that he had no alternative. “Of
course I could not, as it were, embezzle the order. I couldn’t with-
hold it. I had to make it known.” ( Tr.p.2831 .) On cross-exami-
nation he said that he had to pass it down because “I did not
want to be endangered of being regarded as a disobedient com-
mander.” (TV. p. 2922) But was von Kuechler in fact under any
pressure to pass it down? Von Leeb, according to his testimony,
did not pass the order down to the Fiftieth Corps or the rear area.
Von Kuechler knew that von Leeb was opposed to the order, and
can hardly have feared that von Leeb would take any action to
make him pass it down, or any disciplinary action should he
refrain from passing it down. Before the IMT, Dr. Laternser
claimed that many of the army group and army commanders in
chief “did not pass this order on to their troops at all”, and that
Field Marshal Rommel burned the Commando Order “on account
of his personal opposition to it” rather than pass on to his sub-
ordinates an order which he knew to be unlawful.* But von
Kuechler did not want to be a “disobedient commander”. Rather,
he preferred to pass down to his subordinates an order which he
knew to be unlawful and which called for the commission of mur-
der. Whatever comments he may have made about the order to
his subordinates were ineffective to prevent its execution in numer-
ous instances by units under von Kuechler’s command. Von
Kuechler’s responsibility for these murders is as clear as von
Leeb’s.

3. HOTH

In the cases of von Leeb and von Kuechler, we have observed
the execution of the Commissar Order on the northern sector of
the Russian front. The defendant Hoth was in the central sector,
in command of Panzer Group 3 in von Bock’s Army Group. He
admits that he received the order and that he passed it down to
his subordinate corps commanders, “The fact that it was passed
on by me is beyond any doubt”. (TV. p. 3081.) Hoth seems to
say that he disapproved of the order, but, unlike von Leeb and
von Kuechler he does not claim that he gave any oral expression
to his disapproval when passing the order down. (Tr. p. 3087).

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338

Instead, he advanced the extraordinary view that his subordinate
commanders and his troops knew that Hoth would disapprove of
such an order even though he did not say so, and that therefore,
they would not carry the order out, even though he had passed the
order down to them without qualification of any kind. (Tr. p.
. 1086 .)

If Hoth really believed that his officers and men would feel
themselves to be at liberty to disregard the order; if he actually
thought that the tens of thousands of men in his command would
be so sensitive to telepathy as to detect an objection on Hoth’s part
which he was careful not to voice; if he thought that the stern
discipline and the military traditions of the German Army would
have the effect of causing its members to disobey an explicit com-
mand — if Hoth really believed all these things — he needed only to
read the constant flow of reports coming into his headquarters to
become quickly disenchanted. According to these reports, his
troops began killing commissars on June 22 — the first day of the
campaign. That day, the 20th Infantry Division reported to the
XXXIX Motorized Corps that one commissar was killed, and fol-
lowed that up the next day with a similar message. (NOKW-2246,
Pros. Ex. 62.) On June 30, the 12th Panzer Division reported “A
political commissar holding the rank of colonel was taken prisoner.
He was shot as ordered”. (NOKW-22^5, Pros. Ex. 69.) This
report, like many others, by its language excluded the standard
excuse that the commissars included in these documents were
merely killed in battle. Commissar shooting activity by the troops
of the 20th Panzer Division continued to be brisk throughout the
month of July. On the 6th, the Ic officer reported to Panzer
Group 3 on the enemy situation. Among the things included
in this narrative was the “interrogation of a Soviet Russian
Commissar and shooting of same”. On the 18th, he reported
“Approximately twenty commissars were shot by the division
within a 2-week period”.

A good deal has been said in this Court about how the Com-
missar Order gradually became obsolete because of lack of enthu-
siasm for its enforcement by the very officers who handed it down
in the first place. It was not allowed to become obsolete within
Panzer Group 3. On August 8, Hoth’s intelligence officer compiled
an intelligence bulletin which was sent to every unit within the
Panzer group down to battalion level, and which included the
following ( NOKW-2239 , Pros. Ex. 70) :

“In accordance with new Soviet regulations, all regiments and

divisions, as well as higher staffs, have now war commissars

(formerly political commissars), while companies, batteries and

troops have political leaders (Politruks) who also fall under the

339

classification of war commissars. Individual inquiries on the
part of the troops who make it necessary to point out again that
there will be no change in the treatment of these persons.”

This intelligence bulletin was distributed by Hoth’s chief of staff.
Aside from the fact that it shows that the troops were being
ordered a second time to kill captured commissars — and com-
pletely explodes Hoth’s elaborate theory that the order was not
carried out because he had never lent his approval to it — it shows
conclusively that the troops had been carrying out the Com-
missar Order. If these figures of executed commissars were, as
Hoth would have us believe, merely figments of some officer’s
imagination, and if, in fact, the troops had not been executing
these men after capture, there would have been no “individual
inquiries on the part of the troops”. There certainly would not
have been a reply to these inquiries by the chief of staff of Panzer
Group 3, instructing the troops to continue treating commissars
as they had been doing in the past, but to accord members of the
GPU and of the border guards the same treatment as was given
to ordinary captured soldiers.

Finally, other records of Hoth’s Panzer Group 3 once again
demolish the concocted excuse that the reports of shootings were
fabrications and that the Order was in fact not carried out. In an
activity report by the intelligence officer of Panzer Group 3, writ-
ten in the fall of 1941, the following appears (NOKW-1904, Pros.
Ex. 67) :

“The special treatment of political commissars by the armed
forces resulted in its becoming known to the Russians and in
the strengthening of their will to resist. To prevent its being
known, the special treatment should have been performed only
in camps located far back in the rear. Most of the captured
Red Army men and officers are aware of such a special treat-
ment, of which they said they had learned from routine orders
and from political commissars who had escaped.”

One of the witnesses for the defendant von Leeb tried to suggest
that this very natural fear which overtook Russian commissars
was due to “Russian propaganda”. (Tr. p. 2171.) But the docu-
ment quoted above shows conclusively that the commissars became
alarmed, not because of propaganda, but because they soon discov-
ered what fate was in store for them if they were captured. All
along the front, German officers and men were being captured and
interrogated by the Russians, and Russian officers and men were
being captured and interrogated by the Germans; sometimes, as
the document quoted above shows, commissars were captured by
the Germans, and then escaped and rejoined the Red Army. What

340

was it that frightened these commissars? Was it an ugly rumor
that Hitler had issued an order for their execution, but that all
the German officers and men were opposed to it on the basis of
international law and were “quietly sabotaging” it ? Is that why, as
late as the spring of 1942, Russian commissars “were fighting for
their very lives.” (Tr. p. 2162.) Is that why the commissars often
committed suicide, or removed their insignia? (Tr. pp. 216 1,
2179.) Did all these things happen because commissars were not
being killed? We suggest that common sense and the evidence in
this case furnish the answer.

4. SUMMARY

Your Honors, here is an order issued by the High Command
of the Germany Army which ordered and directed the commission
of murder on a large scale. All the defendants knew this ; every
officer and man in the German Army who handled the order knew
it too. The defendants passed it down to their subordinates, and
as a result many murders were committed by troops under their
command.

The mere passing down of this order was a criminal act; the
defendant Raeder was convicted by the International Military
Tribunal of having committed war crimes largely because he
passed the Commando Order “down through the chain of com-
mand”. 1 Military Tribunal V, in the Hostage Case ( Case No. 7,
Tr. pp. 10509-10510), convicted Rendulic of passing down the
Commissar Order, although there was no proof in the record in
that case that any commissars were shot by the troops of Ren-
dulic’s division. 2

Tribunal V also convicted von Leyser in connection with the
Commissar Order. 3 (Case No. 7, Tr. pp. 10521-10525.) Von
Leyser commanded a division in the defendant Reinhardt’s Corps,
and three reports by von Leyser’s Division showed that his troops
had, in fact, shot commissars pursuant to the order. The evidence
against the defendants here is infinitely more extensive and com-
pelling than the evidence against von Leyser and, needless to say,
their responsibility as army group, army, and corps commanders
was far greater than that of divisional commanders such as Ren-
dulic and von Leyser.

These commanders were under an affirmative duty to direct and
control their subordinates in such a manner as to prevent viola-
tion of the laws of war by troops under their command. The

1 Trial of the Major War Criminals, op. cit. supra, vol. I, p. SI 7.

2 United States vs. Wilhelm List, et al., Vol. XI.

3 Ibid.

341

whom they should shoot after capture. Canaris said that a definite
obligation of a commander “to control the operations of the mem-
bers of his command” was discussed at length and firmly recog-
nized by the Supreme Court in the Yamashita case, 1 and as was
held by Military Tribunal V in the Hostage Case 2 ( Case No. 7,
Tr. v • 104.56) :

“Those responsible for such crimes by ordering or authorizing
their commission, or by a failure to take effective steps to pre-
vent their execution or recurrence, must be held to account if
international law is to be anything more than an ethical code,
barren of any practical coercive deterrent.”

But the defendants are not accused here only of sins of omis-
sion, regardless of how grave an offense their failure to take
preventive action, without more, may be. These men participated
affirmatively in the commission of these murders by putting the
order into the hands of their subordinates. These defendants, or
members of their staff, took further steps to insure the execution
of the order, by passing down supplementary directives in con-
nection therewith. Their guilt for these crimes has been estab-
lished beyond any shadow of a doubt, and the crime for which
they bear this guilt is the crime of murder.

B. THE “COMMANDO ORDER”

MR. Higgins: If Your Honors please.

We turn now to the Commando Order. The events which pre-
ceded its issuance were various raids carried out between 19
August and 6 October 1942 by English commando units on Dieppe,
the island of Sark, and various installations in Norway. ( 516-PS .
Pros. Ex. 144.)

On 7 October a German radio broadcast announced “all terror
and sabotage troops of the British and their accomplices who do
not act like soldiers but like bandits have in the future to be
treated as such by the German troops, and they must be slaugh-
tered ruthlessly in combat wherever they turn up”. ( 1266-PS ,
Pros. Ex. 118.) The next day the defendant Warlimont directed
the Legal Department of the OKW, headed by the defendant
Lehmann, to draft a formal order. Lehmann’s assistant, Dr.
Huelle, complied with this request and telephoned the text of a
draft back to Warlimont on the same day. ( 1266-PS , Pros. Ex.
118.) Warlimont then sent it to the office of Foreign Counter-
intelligence under Admiral Canaris and asked for his comments.
Canaris immediately objected to the legal department draft, root
and branch. It allowed the troops to determine for themselves

1 United States Reports, vol. 327, October Term 1945, Nos. 61 and 672.

2 United States vs. Wilhelm List, et al., Vol. XI.

342

criterion should be laid down; that the German troops should be
restricted in the exercise of this order to commandos who were
either in civilian clothing or in German uniform. (126A-PS, Pros.
Ex. 119.) Had this modification been adopted, the whole meaning
and effect of the order would, of course, have been altered.

But Canaris suggested an even more radical change. The legal
department draft provided that commandos who fell into German
hands outside of combat should be interrogated immediately and
then handed over to the Security Service. Canaris wanted such
people to be placed in special confinement after capture, to be
reported to the Office Foreign Counterintelligence, and to be tried
by court martial. (126^-PS, Pros. Ex. 119.) Canaris also pointed
out that reprisals against prisoners of war were absolutely for-
bidden. ( 1265-PS , Pros. Ex. 121.)

Lehmann now says that he and Canaris were working hand-in-
glove trying to mitigate the effect of this criminal order. It has
become fashionable in this trial for the defendants to hide behind
Canaris at every turn. The evidence shows that Lehmann’s way
of working with him was to disagree with the principal obj ections
which Canaris had raised to the legal department draft. Lehmann
argued that Section 23c of the Hague Convention, which forbids
the killing of an enemy who lays down his arms and surrenders,
did not extend to commando troops because “such methods of war-
fare had not been thought of at the time this article was formu-
lated”. ( 1265-Ps , Pros. Ex. 121.) Lehmann also argued that
reprisals against prisoners of war were not absolutely prohibited
but that they depended on reciprocity. It is also significant that
Lehmann never once objected in the course of this extensive
correspondence to anything except the criticism and reservations
which Canaris had expressed. Almost every sentence in the draft
which issued from Lehmann’s office on 8 October was subsequently
incorporated into the final order.

With the various opinions before him, Warlimont elaborated
upon the legal department draft and sent it to Jodi. Warlimont’s
version was followed almost paragraph by paragraph in the order
which Hitler signed on 18 October, although it was further edited
by Jodi and Keitel and, to a certain extent, by Hitler himself.
There were six paragraphs in the final version. The first para-
graph was worded by Hitler, but the argument used there that
commando warfare was outside the Geneva Convention originated
with Lehmann. The second one was written entirely by Warli-
mont, and the third was a joint effort in which Hitler, Keitel, and
Jodi supplemented and extended what Warlimont proposed. The
fourth, again, was solely Warlimont’s work.

343

The illegality of the Commando Order is clear, and has been
established by the decision of the IMT and by the opinion in United
States vs. Wilhelm List, et al. Lehmann himself said on the stand
that he considered the order to have been an “inadmissable repri-
sal” to the extent that it applied to uniformed military personnel.
“Graf Leicester hat nicht immer so gesprochen”.* His argument
concerning the inapplicability of Section 23c of the Hague Con-
vention was concocted for the specific purpose of furnishing an
excuse for murdering captured soldiers who were in proper
uniform.

After the order had been reedited for the last time and signed
by Hitler, Warlimont distributed it to the three branches of the
armed forces which in turn passed it on to the field commanders.
As was to be expected, it was not long before teletype messages
reporting the murders of captured commandos began to pass over
Warlimont’s desk. He helped formulate the answers which had
to be made to the protests subsequently filed by the British. Warli-
mont began to occupy himself with such matters less than a month
after the order had been issued, and continued to busy himself
with correspondence concerning the execution of the Commando
Order until at least July 1944. After the Allied landing in France,
Rundstedt, the Commander in Chief West, requested instructions
as to how the Commando Order should be applied. Warlimont
answered him by saying that it “remains basically in effect even
after the enemy landing in the West.” A few days later, a formal
order to this effect was drafted by Warlimont’s Quartiermeister
staff and initialed by him, after which it was signed by Keitel and
passed on to the field commanders.

The line taken by those defendants who were field commanders
is that the order, even if it was passed on to them, had no appli-
cation in the East. Hoth, for example, made the sardonic observa-
tion that he was fighting in the Steppes south of Stalingrad when
he heard the German radio announcement of 7 October, and that
he did not anticipate seeing any British commando troops there.
Von Roques, whose sense of humor did not rise to this pitch,
owlishly stated that for his part he did not consider the Commando
Order to be applicable because it referred only to Europe and
Africa, whereas he was in Asia at the time he received it. (7V.
p. 5350.)

To a certain extent, we agree that the order did not have the
same effect in Russia that it had in the West. The reason that it
did not bring about a radical innovation in the treatment of
captured prisoners of war in Russia is that too long before it was

* “Graf Leicester hat nicht immer so gesprochen (Lord Leicester hath not always spoken
thus).” Act II “Maria Stuart,” by Friedrich von Schiller. See further reference to this quo-
tation in section F 6, closing brief for defendant Lehmann.

344

issued the German troops had been shooting captured paratroopers
and members of sabotage units. These classes of troops are
included regularly on the Security Service lists of liquidated per-
sons. ( N OKW -27 47 , Pros. Ex. 752.) This was done by virtue
of other orders which had been issued from the outset of the
Russian campaign. ( NOKW-2626 , Pros. Ex. 249.)

But the evidence shows that it is certainly not correct to say
that the order was only of academic interest to field commanders
in the East. For example, an entry in the war diary of Reinhardt’s
3d Panzer Army for 18 November 1942 — exactly one month after
the Commando Order was issued — reads (NOKW— 34*82, Pros. Re-
buttal Ex. 46) :

“Various difficulties have arisen concerning the execution of
the Fuehrer Order of 21 October relative to the shooting of ter-
rorists and groups of bandits. The Panzer army asks the army
group to clarify, above all, whether this order merely concerns
British terror groups or whether it also applies to the other
bands in the occupied area. In this connection, the army takes
the attitude that, until a new OKW decree is published, which
is in prospect, all bandits are to be shot to death even if they
wear uniforms.”

The order issued by the 3d Panzer Army the next day provided
( NOKW-3358 , Pros. Rebuttal Ex. 40) :*

“Until intended new regulations of OKW are published, bandits
who surrender voluntarily without being forced by other circum-
stances, will be treated as prisoners of war. All other bandits,
including the uniformed ones, will be shot.”

Similarly, on 29 October, {N OKW -27 46, Pros. Ex. 748) , the chief
of staff of Salmuth’s Second Army asked the army group to “clar-
ify”, in connection with the Commando Order, whether the German
troops were required to massacre all deserters from partisan units
who surrendered. These examples are sufficient to show the partici-
pation of the defendants in carrying out this order and, incidentally,
to explode the contention that it had no relation to the war in Russia.

We have thus gone further in our proof than we needed to go.
It was not necessary to show that the Commando Order was car-
ried out in order to show the commission of a crime. The mere
transmittal of such an order to subordinate units is sufficient, as
was held in the cases of Raeder and Rendulic, mentioned above
in connection with the Commissar Order. This was done by the
defendants von Kuechler, Reinhardt, von Salmuth, and Reinecke.
They are all guiltier than was Doenitz, who was convicted by the
IMT because he “permitted the order to remain in full force when
he became commander in chief, and to that extent he is respon-

* Document reproduced in section VII C-4.

345

sible”. 1 Warlimont and Lehmann, of course, as the draftsmen of
the Commando Order, are criminally responsible for all the mur-
ders committed thereunder, whether in the East or in the West.

C. OTHER CRIMES AGAINST PRISONERS OF WAR

Paragraphs 50 to 57 of count two of the indictment charge all
the defendants except Schniewind with other crimes against pris-
oners of war. An abundance of evidence has been introduced in
support of these charges. It will be summarized with respect to
each individual defendant in our briefs, and we will limit ourselves
here to a very few brief observations.

The defendants have relied heavily on the circumstances that the
Soviet Union was not a partj^ to the Geneva Convention with
respect to the treatment of prisoners of war, but it is well settled —
and was so held by the IMT — that the general principles of inter-
national law with respect to the treatment of prisoners of war
were applicable as between Germany and the Soviet Union. The
German High Command was fully aware of this, and Admiral
Canaris of the OKW set forth this viewpoint in a memorandum
of 15 September 1941, protesting against proposed regulations for
the treatment of Soviet prisoners. 2 Under these well-established
principles, war captivity is not a “punishment,” and prisoners of
war are not fit objects for revenge or reprisals. They must not be
subjected to dangerous employment, nor required to work against
the interests of their own country by being forced to engage in
any type of labor directly related to war operations.

There are many documents in evidence showing that Russian
prisoners of war were regularly employed to clear mines. The
reason given in one of the orders which required this was that
the use of prisoners of war for this purpose was “to spare German
blood”. ( NOKW-1527 , Pros . Ex. 180; NOKW-2251 , Pros . Ex.
187). Another ingenious practice which was engaged in was bil-
leting prisoners of war in buildings which the Germans were to
occupy if it was suspected that they might contain mines or booby
traps. ( NOKW-2S57 , Pros. Ex. 188; NOKW-3337, Pros. Rebut-
tal Ex. 3.)

Another regular occupation of these prisoners of war was to
engage in the loading and unloading and transportation of muni-
tions. ( NOKW-2966 , Pros. Ex. 13 U6.) From time to time, as
could be expected, these prisoners of war were killed while so
employed. ( NOKW-19U1 , Pros. Ex. 208.) Rut the object of the
order which committed them to this work was carried out : German
blood was spared.

1 Trial of the Major War Criminals, op. cit. supra, vol. I, p. 314.

2 Ibid, p. 232.

346

The most widespread use of prisoners of war was made in the
course of constructing fortifications. There is hardly a field com-
mander in the dock whose troops did not use prisoners of war to
construct trenches, antitank ditches and field positions of various
kinds. Von Salmuth did it in France just as Hoth did it in Russia.

Without trying to make this catalogue more complete, we pass
on to a related topic — the general murder and ill-treatment of
prisoners of war. It is clear from the reports and orders in evi-
dence here that the German Army followed a consistent policy of
shooting all .Soviet prisoners of war who had attempted to escape
and had been recaptured. But it is well settled under the laws
of war that it is not a criminal offense for a prisoner of war to
attempt to escape and that, if he is recaptured, he is only to be
subjected to such disciplinary measures as security and the pre-
vention of further attempts may require. The execution of a
prisoner of war merely because he has attempted to escape and
been recaptured is strictly prohibited by the laws of war, and is
murder.* And the record in this case contains a multitude of
reports which follow one another in an endless procession showing
that Soviet prisoners of war who had escaped from confinement
were shot as soon as they were retaken.

The treatment which Russian prisoners of war habitually
received while in German custody is one of the most appalling
parts of this appalling case. In connection with the Commissar
Order, we have already mentioned that the inmates in the prisoner
of war cages were screened for the purpose of removing those of
them who fell within the meaning of that lethal ordinance. But
the screening process went much further. All the prisoners of
war were put into one of several classifications. Into the first of
these three classifications fell ethnic Germans, Ukrainians, and
natives of the three Baltic countries. Into the second fell Asiatics,
Jews, and German-speaking Russians. The third category con-
sisted of persons classified as “politically intolerable and suspicious
elements, commissars and agitators”.

Theoretically, the treatment was to vary according to the clas-
sification. The first group was earmarked for service as auxili-
aries of the German Army and, sometimes, even as combat troops ;
the third group was considered as temporary boarders who were
to survive only until firing squads could be organized. The Jews
were taken care of by the extermination squads of the Einsatz-
gruppen, and the remainder was scheduled to be shipped to Ger-
many to work in the armament industry or to operate antiair-
craft guns.

* The general principles governing escaped prisoners of war are set out in sections 50 to 54
of the Geneva Convention.

893964—51 24

*47

These were the eventual fates which the German authorities had
in mind, but before any given prisoner of war could fulfill this
destiny, he had to contrive to stay alive long enough for the plans
of his captors to be carried out. This was no mean feat. It will
never be known how many millions of Russian prisoners of war
died in the Dulags [transit PW camps] and Stalags [permanent
PW camps] within the jurisdiction of these defendants. The Ober-
quartiermeister of von Kuechler’s Eighteenth Army said in No-
vember 1941, that 100 men were dying daily within the army area.
A little later it was disclosed that all the inmates of one camp
there were expected to die within 6 months at the outside. At
about the same time the Oberquartiermeister of Hoth's Seven-
teenth Army reported that deaths among prisoners of war within
his jurisdiction were approximately 1 percent a day. Rosenberg
wrote Keitel in February 1942 that “the fate of the Soviet pris-
oners of war in Germany is a tragedy of the greatest extent. Of
3.6 millions of prisoners of war, only several hundred thousands
are still fully able to work.”

What we have said about the illegal use of prisoners of war for
labor, and about the care and treatment furnished them while they
were in German custody applies primarily to what took place in
the operational area while these prisoners were still under the
control of the field commanders. The story of what happened to
those of them who survived long enough to be shipped to Germany
is a history in itself. The food which they received after they had
arrived in the Reich was still inadequate to sustain life, particu-
larly when these sick and half-starved prisoners were allocated to
work which demanded strenuous physical exertion. We have
mentioned that thousands of Russian prisoners of war were
drafted to man antiaircraft batteries: the Court will remember
the testimony of the witness Erhard Milch 1 in this connection.
Thousands of others were assigned to work in various armament
plants in Germany. These included not only Russians, but French
prisoners of war and Italian military internees as well. A descrip-
tion of the conditions under which some of these men were kept
can be found in the judgment of Tribunal III in the Krupp Case. 2
The man most responsible for the plight of prisoners of war in
Germany was the defendant Reinecke. In almost every war crimes
case where the question of starvation, ill-treatment, and illegal
use of prisoners of war has been an issue, Reinecke’s name has
played a prominent part. The number of victims of the system
which he established and administered is incalculable. As has

1 Defendant in the case of United States vs. Erhard Milch, Case 2, vol. II, this series. Erhard
Milch testified as a defense witness in this case. Complete testimony is recorded in mimeo-
graphed transcript, 17, 18 June 1948, pp. 6119-6189.

2 United States vs. Alfried Krupp, et al., Case No. 10, Vol. IX.

348

already been shown, he knew fully and precisely from the very
outset the extent to which he was disregarding international law.
His guilt is enormous.

In general, there are three excuses offered by the defendants for
having allowed this calamity to take place. The first is that the
reports are either exaggerated or false. It is enough to say in
reply to this that the gruesome uniformity which is to be found in
every document relating to the physical condition of Russian
prisoners of war, no matter what the source or authorship of the
document, excludes the possibility of either falsehood or exag-
geration.

The second defense is that the condition of these prisoners of
war was partly self-inflicted. The argument goes this way: the
Germans surrounded large groups of Russian soldiers during the
early months of the campaign. If these Russians had been reason-
able, they would have surrendered as quickly as they found
that they were cut off. Instead, they obstinately persevered in
resisting until their food, water, and ammunition supplies were
exhausted. Therefore, they were in a somewhat debilitated con-
dition when they first came into German hands. It follows that the
Germans are not to be blamed if they died by the millions later on.

Apart from the fact that this argument is inconsistent with the
contention that the reports are either fictitious or inaccurate, it is
ridiculous to say that because a man is hungry and ragged, when
he becomes your prisoner of war you have the right to allow him
to die of malnutrition or to freeze to death. We know of no
requirement in international law or anywhere else that soldiers,
upon surrendering, must bring along their own housing and cook-
ing facilities.

The third and last defense consists of a kind of shell game in
which the pea represents responsibility for the care and treatment
of prisoners of war. V on Leeb, the Army Group Commander, wants
to say that this lay entirely with his army commanders and with
the Commander of the Rear Area of the Army Group. The army
commanders want to say that the responsibility fell on the com-
mandant of prisoners of war, although Hoth testified candidly that
his Oberquartiermeister dealt with prisoner of war affairs and
that he, as commander of an army, was responsible for taking
care of the prisoners of war in his area; the documents show
conclusively that, within the operational area, the army groups
and armies exercised complete control over prisoner of war affairs.

D. DEPORTATION AND ENSLAVEMENT

Paragraphs 64 to 68 of count three of the indictment charge the
defendants with war crimes and crimes against humanity against

349

the populations of occupied countries, including the deportation of
the inhabitants to forced labor in the Reich, the forced labor of
the inhabitants on field fortifications and for mine clearance, the
plunder of private and public property, and wanton destruction
and devastation. We shall leave most of these matters to presen-
tation in our briefs, and will deal here only with the responsibility
of the defendants for the deportation of millions of civilians to
forced labor in Germany.

When Germany commenced to reach the bottom of her man-
power barrel, the scheme was initiated to make wholesale trans-
fers of workers from occupied territory to the Reich for use in
the armaments and munitions industries. This over-all plan was
implemented in various ways. At first, drives were put on to
encourage foreign workers to volunteer for labor service in Ger-
many. The response to this was so feeble that machinery was set
in motion to substitute force for persuasion. In the West, the
“Sauckel Action” was instituted in the spring of 1942. The result
of this was, as Tribunal III stated in the Krupp Case* [judgment]
( Case No. 10, Tr. pp. 13327-13328) :

“Wholesale manhunts were conducted and able-bodied men
were shipped to Germany as ‘convicts’ without having been
charged or convicted of any offense. Many were confined in
penal camps for 3 months during which time they were required
to work for industrial plants. If their conduct met with ap-
proval they were graduated to the status of so-called ‘free’ labor.
This was a misnomer, as they were detained under compulsion.”

The record shows that the defendant Sperrle, who was com-
mander of all German Air Force units in the West and also served
as Commander in Chief West during Rundstedt’s absence, cooper-
ated with the agencies of Sauckel’s Labor Mobilization Program.
Sauckel himself told Milch at a meeting of the Central Planning
Board that Sperrle had been most obliging in this respect. On
another occasion, Sperrle sent a basic order which directed that
German agencies in northern France and Belgium were not to
recruit laborers on their own initiative, as this practice interfered
with the Sauckel Action.

A different procedure was used for impressing and deporting
civilian workers in the east. There the agency which was pri-
marily charged with the task of obtaining the labor which Ger-
many needed was the Economic Staff East, which operated as part
of Goering’s Four Year Plan. The defendants attempt to disclaim
all responsibility for what was done by this organization. But
this disclaimer is contrary to the evidence of what actually hap-

• Ibid.

350

pened. An Economic Inspector was with each army group staff.
Attached to the staff of each army was an economic leader. Eco-
nomic offices which belong to the organization were also to be
found with the army group rear area, the Security Divisions and
the Feldkommandanturen. In other words, every agency of the
German Ground Forces from the army group area to the front
line troops was riddled with representatives of Economic Staff
East.

As an example of the part which the army played in the imple-
menting and execution of the slave labor program, a brief narra-
tive of the evidence relating to the defendant Reinhardt will be
illuminating. On the witness stand, he testified that the first time
he or the staff of his 3d Panzer Army were involved in the drafting
of workers to be shipped to Germany, was in July 1943. The
downright untruth of this statement cannot be demonstrated better
than by the contents of two documents, both issued in November
1942. The first is an order which was signed by Reinhardt him-
self in which he announced that ( NOKW-S5S9 , Pros. Rebuttal
Ex. 39) :

“The Fuehrer has charged Gauletier Sauckel with the direc-
tion of the entire labor allocation program reaching into the zone
of operations. An intelligent cooperation of the military agen-
cies with the departments of labor allocation administration
must make it possible to mobilize the work capacity of the entire
able-bodied population. If success cannot be achieved in any
other way, coercive measures must now be applied to recruit the
required labor for allocation in the Reich.”

The report of a Secret Field Police group to the 3d Panzer Army
3 weeks later stated the following (NOKW-684, Pros. Ex. 719) :

“Jefim Charitonow * * * with his three juvenile children,
made his way to the partisans, although the children objected ;
he was arrested on his way.

He was shot on 22 October. The three children were sent to
Germany to work.”

An order issued by the headquarters of one of Reinhardt’s sub-
ordinate corps on 2 June 1943, contains the following (NOKW-
2100 , Pros. Ex. U71) :

“The drafted labor forces will attempt to dodge the labor
allocation with every means at their disposal * * *. All men and
women are to be instructed that they will be shot at any
attempt to flee * * *. The labor camps with the divisions must
be surrounded by barbed wire and remain under constant super-
vision.”

351

In July 1943, Reinhardt drafted and published a proclamation
to the inhabitants of the territory occupied by his troops, which
provided ( NOKW-2340 , Pros. Ex. U8U) :

“All persons of the age group 1925 have to serve their com-
pulsory labor term in the Reich territory, with the exception
of those who are employed as voluntary helpers, with indigenous
units, or with the indigenous police service.”
****** *

“Whoever tries to evade his service obligation will be severely
punished. The same also applies to persons who harbor anyone
liable to service or in any way help him (her) in his attempts
to evade the service obligations, or strengthen him in his intent
to evade his duty. Moreover, in place of the person liable for
service who has not appeared, his next of kin may be drafted
for labor allocation in the Reich, regardless of the personal
circumstances.”

On 23 July, the minutes of a meeting held at the headquarters
of the 3d Panzer Army noted that one reason for the difficulty
in apprehending inhabitants for labor commitment was the large
quota which had been imposed on the army, to wit, “a thousand
Eastern workers per week for the Reich”. One cure which was
proposed for attempted evasion of service in Germany was that
members of the families of persons who had escaped were to be
apprehended “regardless of personal situation” and substituted
for the escapees. ( NOKW-2A73 , Pros. Ex. U87.)

On 26 July the 3d Panzer Army made a report to Army Group
Center, concerning the recruitment of Eastern workers. The
introductory sentence reads, “The population rejects labor allo-
cation in the Reich”. One of the measures suggested to overcome
this resistance was the following (NOKW-2U5U, Pros. Ex. U89) :

“Persons apprehended by force, after attempts to evade this
draft, at first will be sent to penal camps which must be
run along strict lines.”

It was also mentioned that the age group 1926 had to be drafted
as well as the members of the 1925 class.

This is an appropriate place to mention the testimony of one
of Reinhardt’s witnesses, who said that Reinhardt demonstrated
his objection to these orders. He was asked how he demonstrated
it. The answer was : by assuring the population that only mem-
bers of the 1925 age group were affected, and that the rest of
the population need not be apprehensive about this program.
Apparently the witness had reference to the proclamation which
was mentioned a moment ago. (TV. p. 38 hU.) The value of Rein-

352

hardt’s reassurance as a soothing syrup must have been some-
what diminished when he added, within less than a month, still
another age group to the list. The documents show that the quota
of a thousand workers a week, which had been assigned to the
3d Panzer Army, was being met by the middle of August
(. NOKW-2570 , Pros. Ex. U92) .

Reinhardt’s army group headquarters continued to issue orders
providing for the shipment of workers to Germany. One such
order, involving approximately 100,000 persons, is dated Novem-
ber 1944. (NOKW-2931, Pros. Ex. 1279.) Reinhardt’s principal
defense on this issue almost takes us into the realm of meta-
physics. He and his witnesses admit that a compulsory labor
service program was instituted by the army, but they say that
no force was used. How such a program could be compulsory
without the use of force is indeed difficult to understand. Per-
haps, the misunderstanding lies in the meaning of the word force.
We associate shootings, severe punishments, and barbed wire
enclosures with force. Apparently Reinhardt does not.

E. MURDER AND ILL-TREATMENT OF CIVILIAN
POPULATIONS— THE EINSATZGRUPPEN

DR. HoRLIK-Hochwald : Repression and ill-treatment of the
civilian populations of the occupied countries was not limited
to deportation and enslavement of their persons and plunder and
destruction of their property. Grave as these crimes were, there
were others which were even more savage. Thousands upon
thousands of civilians were illegally spirited away and imprisoned
or murdered, pursuant to the notorious “Nacht und Nebel”
[Night and Fog] Decree formulated by Warlimont and Lehmann.
A stupid and brutal policy for the suppression of resistance by
the indiscriminate slaughter of hostages characterized the Ger-
man occupation almost everywhere. But the darkest blot on the
record of the German Army and of these defendants is their par-
ticipation in the slaughter of millions of Jews, gypsies, and politi-
cal officials in the Eastern Occupied Territories. And we will
conclude our discussion of the evidence today with a brief analysis
of the responsibility of these defendants for the millions of mur-
ders committed by the Einsatzgruppen of the Security Police and
SD [Security Service] — a program of murder which was de-
scribed by Military Tribunal II [judgment] as “beyond the ex-
perience of normal man and the range of man-made phenomena
{Case No. 9, Tr. p. 66J)8.)

All the defendants have emphatically denied any knowledge of
the extermination mission of these units and of criminal acts

* United States vs, Otto Ohlendorf, et al., Vol. IV.

353

perpetrated by the SD. If they learned at all that Communists,
Jews, and other so-called “undesirables” were being killed, then
the rumors which came to their ears concerned only events which
had happened somewhere far in the rear, in territories under
civil administration. And they were never able to put their
fingers on the sources of these rumors, or to evaluate their
credibility. They never dreamed that the Einsatzgruppen of the
SD were in any way concerned with such “excesses”. In each
and every case, it was the indigenous population which spon-
taneously killed Communists and Jews.

But, at the same time that this strange phenomena was trans-
piring, all these defendants, witnesses and affiants who professed
complete ignorance of the “illegal” activities of the SD units, dis-
played detailed and accurate knowledge of what they called the
“legal” tasks of the Einsatzgruppen, such as security tasks, ap-
praising the political situation, and participating in antipartisan
combat. That these security tasks embraced the extermination
of those races and classes which might endanger or only incon-
venience the future of Hitler’s thousand-year Reich, escaped their
attention somehow.

The laws and customs of war provide for military authority
over the territory of the hostile state . 1 Territories are consid-
ered occupied according to these laws when it is actually placed
under the authority of the hostile army . The occupation extends
only to the territory where such authority has been established
and can be exercised . 2 The military authority is obligated to
ensure public order and safety 3 and to respect family honor and
rights and the lives of persons . 4 Tribunal V in the “Hostage” Case
[judgment] has given full recognition to this principle 5 ( Case No.
7 , Tr. pp. 10455-10456) :

“The commanding general of occupied territory having execu-
tive authority as well as military command, will not be heard
to say that a unit taking unlawful orders from someone other
than himself, was responsible for the crime and that he is
thereby absolved from responsibility. It is here claimed, for
example, that certain SS units under the direct command of
Heinrich Himmler committed certain of the atrocities herein
charged without the knowledge, consent, or approval of these
defendants. But this cannot be a defense for the command-
ing general of occupied territory. The duty and responsibility
for maintaining peace and order, and the prevention of crime

1 Annex to Hague Convention, sec. Ill, art. 42-66.

2 Ibid., art. 42.

3 Ibid., art. 43.

4 Ibid., art. 46.

5 United States vs. Wilhelm List, et al., Vol. XI.

354

rests upon the commanding general. He cannot ignore obvious
facts and plead ignorance as a defense.”

As holders of executive power and commanders in their areas,
the defendants were the highest authorities. Thus, they bear
full responsibility for all criminal acts against civilians which
were carried out by anyone for the time when they were in
command of these areas. The testimony of the witness Ohlen-
dorf is noteworthy. Ohlendorf was condemned to death in this
very building, but the Tribunal which found him guilty of mass
murder paid high praise to his truthfulness. 1 (Case No. 9, Tr. p.
6787.) When asked if the liquidation of Jews, Communists, and
ether “undesirables” was carried out with the authorization of
the army authorities, Ohlendorf stated:

“I believe that the very fact that the armed forces itself
issued requests and directives for these executions and gave
their support for the carrying out of these executions is suffi-
cient proof for their consent without having to add one other
word. Such demands were repeatedly made with respect to
mentally insane, but these could be rejected by me because the
instructions issued to me made it possible for me to reject
the requests of the armed forces. However, with respect to the
demand to liquidate Jews in Simferopol at the beginning of
September 1941, I had to comply with the instruction because
I had no argument to counter it. In order to carry out this
liquidation, which transcended our possibilities, the army af-
forded to us all necessities in factual and practical respects.
For the rest, the army knew about liquidation of Jews earlier
than I did myself, since at the beginning of the Russian com-
mitment I, myself, had been eliminated from work with the
army for at least 4 weeks, and the army commanded the Ein-
satzkommandos directly while I was left in Rumania. Accord-
ing to army instructions, these Einsatzkommandos reported
directly to the army about the liquidation of Jews such as
took place, for instance, in Chernovitsy. I myself didn’t even
get a copy of these reports.”

In view of the authority exercised and responsibilities borne
by these defendants, it is not, strictly speaking, necessary to
establish that they had actual knowledge of the Einsatzgruppen.
As Tribunal V held in the Hostage Case 2 , (Case No. 7, Tr. p.
10461) “An army commander will not * * * ordinarily be per-
mitted to deny knowledge of happenings within the area of his
command while he is present therein”. But the contention that

1 United States vs. Otto Ohlendorf, et al., Vol. IV.

2 United States vs. Wilhelm List, et al., Vol. XI.

355

the activities of these gangs of murderers who were fed and
housed by the army and would have been helpless without the
army support were unknown to the army commanders, and that
these killings of millions took place without their knowledge is a
palpable and grotesque fabrication. As the defendant von Leeb
himself testified (2V. p. 2364) : “Every military commander at
the front is highly interested that in his battle area, and in the
rear of his battle area, peace and quiet, and law and order pre-
vails among the civilian population”. The defense witness Haider
was “firmly convinced” that the slaughter of Jews “certainly
provoked indignation among parts of the Russian civilian popu-
lation”, and agreed that “it would not be unreasonable for a
commander in chief to take the position that the activities of the
Einsatzgruppen in executing substantial parts of the population
was a threat to his security and to his operations”. ( Tr . p. 2107.)
The defendant von Roques testified that it was his duty as Com-
mander of the Army Group Rear Area to safeguard the lines of
communication and supply, and to insure military security in
his area. (TV. pp. 5142-5144.) That is why Security Divisions
were stationed in the rear area to patrol the roads and railways,
and why the Feldkommandanturen and Ortskommandanturen
were established in the towns and villages. As the record abund-
antly shows, the area behind the front line was not a desert where
one could wander to and fro unchallenged, but rather a veritable
maze of rear headquarters, command posts, prisoner-of-war
stockades, airfields, ammunition and gasoline dumps, supply
depots, hospitals, motor pools, and security and communication
units that made it possible for the front line troops to engage in
combat. That is why the army carried on counterintelligence
activities in the occupied area, and why intelligence reports were
regularly submitted to the headquarters of these defendants tell-
ing them what was going on behind the lines. The Secret Field
Police, the Security Divisions, and many other units were in
constant and close touch with the civilian population. Men,
women, and children cannot be wrenched from their homes and
snatched off the streets by the hundreds of thousands and led
away to slaughter and burial in a common grave, without the
knowledge of their relatives, friends, and neighbors, or without
lamentation, outcries, and bitter protests. The bare suggestion
that the Einsatzgruppen flitted through Russia, murdering Jews
and other “undesirables” by the millions, but secretly and unbe-
known to the army, is utterly preposterous — the desperate spar-
ring of men who have no recourse but to say what is not true.

This evidence is compelling as to all the defendants and it is
almost a work of supererogation to press the question further.

356

But the defendants did not have to depend for their information
on what they could so plainly see and hear going on about them.
Let us briefly examine some of the documentary evidence with
respect to three of the defendants — von Leeb, von Roques and
Woehler.

1. VON LEEB

The order concerning the employment of the Einsatzgruppen
in the operational area was distributed to Leeb’s headquarters
on 28 April 1941. On 8 June came the Commissar Order direct-
ing the execution of civilian commissars and commissars attached
to the troops. (NOKW-1076, Pros. Ex. 57.) This order expressly
stated that commissars arrested in the rear area of the army
group “on account of doubtful behavior” were to be handed
over to the Einsatzgruppen or Einsatzkommandos of the Security
Police and SD. On 24 July, the first of two criminal orders
cn segregation of prisoners of war and civilians in camps and
the execution of “politically untenable and suspicious elements:
commissars and agitators found among them” was issued to
von Leeb’s headquarters. (NOKW-2423, Pros. Ex. 244.) It also
provided that “suspicious civilians” in the army group rear area
would be turned over to the Einsatzgruppen and Einsatzkom-
mandos of the Security Police and SD. The order of 7 October
1941, received by von Leeb’s headquarters, altered the segrega-
tion procedure by providing that it was henceforth to be done
in the rear area of the army group by Sonderkommandos of the
Security Police and SD rather than by army units. I quote from
it (NO-3422, Pros. Ex. 367 ) :

“In agreement with the commanding officers of the rear army
group area (district commanders for prisoners of war), the
operations of the Sonderkommandos have to be regulated in
such a way that the segregation is effected as unobtrusively as
possible and that the liquidations are carried out without delay
and at such a distance from transient camps and villages as
to insure their not becoming known to the other prisoners of
war and to the population.”

One need not be a field marshal to understand these orders.
Any semi-literate person who received any one of these three
orders would very well know that the Einsatzgruppen were mur-
der squads. Von Leeb’s headquarters received all of them. Von
Leeb does not deny this. He merely says that he does not recall
reading them or doing anything about them. Far from being von
Leeb’s salvation, it is his condemnation.

A tabulation of the number of executions by Einsatzgruppe A,
attached to von Leeb’s Army Group, shows that, from the begin-

357

ning of the Russian campaign to 15 October 1941, 135,567 persons
were murdered, all but a few thousand of whom were Jews.
(L-180, Pros. Ex. 956.) The vast majority of these murders
took place in Lithuania, Latvia, and Estonia, which were within
the operational area of Army Group North during part or all
of the afore-mentioned period. Estonia, where 1,158 were killed,
was always within the operational area of Army Group North, as
shown by the operational maps in evidence. The Reich Commis-
sariat was established in Estonia on 5 December 1941, but von
Leeb conceded that the Commander of the Rear Area of Army
Group North still had military functions and powers after that
date. (TV. pp. 25U-2515.)

Von Leeb tried to shift substantially all of the murders by
Einsatzgruppe A into the area of the Reich Commissariat Ostland.
He testified that Einsatzgruppe A had no connection to the
armed forces, that its crimes were never reported to the armed
forces, and that they occurred hundreds of kilometers away
from the front.

All of this is clearly refuted by the report of Stahlecker, com-
mander of Einsatzgruppe A, as well as numerous other docu-
ments. The murderous activities began during the first days
of the campaign in active and close collaboration with von Leeb’s
immediate subordinates. Stahlecker said (L-180, Pros. Ex. 956) :

“Einsatzgruppe ‘A’ after preparing their vehicles for action
proceeded to their area of concentration as ordered on 23 June
1941, the second day of the campaign in the East. Army Group
North consisting of the 16th and 18th Armies and Panzer
Group 4 had left the day before. Our task was to hurriedly
establish personal contact with the commanders of the armies
and with the commander of the army group rear area. It
must be stressed from the beginning that cooperation with the
armed forces was generally good, in some cases, for instance
with Panzer Group 4 under Gen. Hoepner, it was very close,
almost cordial. Misunderstandings which cropped up with some
authorities in the first days, were cleared up mainly through
personal discussions. At the start of the Eastern Campaign it
became obvious with regard to the Security Police that its
special work had to be done not only in the rear areas, as was
provided for in the original agreements with the High Com-
mand of the Army, but also in the combat areas * * *.”

The Stahlecker report describes further the horrible massacre
at Kovno which was captured by the 16th Army a few days after
the campaign opened (L-180, Pros. Ex. 956) :

358

“During the first pogrom in the night from 25 to 26 June the
Lithuanian partisans did away with more than 1,500 Jews,
set fire to several synagogues or destroyed them by other means
and burned down a Jewish dwelling district consisting of about
60 houses. During the following nights about 2,300 Jews were
made harmless in a similar way. In other parts of Lithuania
similar actions followed the example of Kovno, though smaller
and also including the Communists who had been left behind.

“Those self-cleansing actions went smoothly because the army
authorities who had been informed showed understanding for
this procedure. From the beginning it was obvious that only
the first days after the occupation would offer the opportunity
for carrying out pogroms/'

Thus, army authorities under von Leeb were informed of the
planned massacre before it even took place. Von Leeb's own
headquarters were located in Kovno 1-10 July. He admits he
heard of killings in Kovno while his headquarters were still in
East Prussia, but denies any killings while his headquarters
were in Kovno. (Tr. pp. 2513-251A.) It appears, however, that
the murder and persecution of Jews continued during the time
von Leeb was in Kovno and thereafter. The report above speaks
of pogroms during the nights following 26 June. Another Einsatz
report dated 11 July 1941 stated ( NO-293 U, Pros . Ex. 922) :

“In Kovno a total of 7,800 Jews have been liquidated up to
now, partly through pogroms, partly through shootings by
Lithuanian Kommandos. All corpses have been removed.
Further mass shootings are no longer possible; I summoned,
therefore, a Jewish committee, and explained that up to now
we had no reason to interfere with the internal arrangements
between the Lithuanians and the Jews * * *.

“Prisons now are being combed through once more, Jews —
if special reasons prevail — are being arrested and shot. This
will involve executions of a minor nature of 50 to 100 persons
only. To prevent Jews from returning to Kovno, an agreement
was made with the Higher SS and Police Leader to the effect
that the local police draw a cordon around Kovno not allowing
any Jews to enter the town. If necessary, Jews will be fired
upon. All armed forces agencies were informed about the
directives".

Von Leeb was asked what he did in connection with this
wanton slaughter of over 7,500 Jews in an area controlled by his
troops. His reply was that he told the 16th Army to prevent any
further excesses. (Tr. p. 238 U.) Assuming the truth of this
highly doubtful statement, he caused no investigation to be made,

359

he had no one brought to justice, he took no effective steps to
avoid its repetition. His troops controlled the city, his sub-
ordinates knew of and supported the atrocities. They continued
while von Leeb was in Kovno. He did nothing.

Precisely parallel atrocities took place in Riga shortly following
its capture by the 18th Army about 1 July 1941. An Einsatz
report, dated 7 July 1941, proves that units of Einsatzgruppe A
had entered the city and instigated a pogrom. “All synagogues
have been destroyed; 400 Jews have already been liquidated.”
( NO-2935, Pros. Ex. 958.) It also pointed out that, as a result
of the alleged shooting of a German soldier by a Jew, “100 Jews
were shot on the very same spot by a Kommando of the Security
Police and SD.” But this was only the beginning. A report of
16 July 1941 stated ( NO-2938, Pros. Ex. 924) :

“At Riga, the Einsatzkommando 2 assorted the entire ma-
terial, searched all offices, arrested the leading Communists as
far as they could be found, and, headed by SS Sturmbann-
fuehrer Barth, conducted in an exemplary manner all actions
started against the Jews. Six hundred Communists and 2,000
Jews are under arrest at present. Four hundred Jews were
killed during pogroms in Riga, and since the arrival of Einsatz-
kommando 2, 2,300 by the Latvian auxiliary police and partly
by our own men. The prisons will be emptied completely during
the next days. Outside of Riga an additional 1,600 Jews
were liquidated by the Einsatzkommando 2 within Latvia.”

A report of 6 July 1941 establishes the murder of 526 persons
by units of Einsatzgruppe A in Gargzdai, Kretinga, and Palanga.
“During the three large scale actions, mainly Jews were liqui-
dated. Among the number of executed, however, there were also
Bolshevist officials and snipers, some of whom, for this purpose,
had been handed over by the armed forces to the Security Police.”
Up to 16 July 1941, a unit of Einsatzgruppe A had killed 1,150
Jews in Dvinsk. “The arrested Jewish men are shot without cere-
mony and interred in already prepared graves * * *.” ( NO-2938,
Pros. Ex. 924-) Between 22-25 July 1941, 229 persons desig-
nated as Communist Jews and Jewish women, Russians, Lithu-
anian Communist functionaries, and a Politruk were murdered
by a unit of Einsatzgruppe A in Pagiriai, Kedainia, and Mariyam-
pole. (NO-28^9, Pros. Ex. 959.)

The mass murders thus far discussed occurred in Lithuania,
Latvia, and Estonia between the beginning of the attack on Russia
and 25 July 1941. Throughout the whole of this period, the places
in which such massacres occurred were under von Leeb’s juris-
diction in the operational area of Army Group North — which ex-

360

tended from the border of the Reich to his front line. The Reich
Commissariat Ostland was first established on 25 July 1941 and
extended to the Duena River. (Tr. p. 2516; NOKW-3150, Pros.
Ex. 1480; NOKW-3151, Pros. Ex. 1481.) Most of the cities where
the massacres took place were at the time located in the rear
area of Army Group North, while Kovno was, for part of the
time von Leeb’s own headquarters.

When Tartu [Dorpat] and Tallin [Reval] in Estonia were
captured by troops of Army Group North, “A Kommando of the
Security Police was always with the first army units”. ( L-180 ,
Pros. Ex. 956.) The same report showed that up to 25 October
1941, 474 Jews and 684 Communists had been executed in Estonia.
(L-180, Pros. Ex. 956.) A report of Einsatzgruppe A covering
its activities up to the end of 1941 states, “Today there are no
longer any Jews in Estonia.” ( 2273-PS , Pros. Ex. 957.)

During the time when these atrocities occurred, Estonia was
part of the operational area of Army Group North. (Tr. p. 2515.)
The cities of Tallin, Tartu, Narva, and Darnu in Estonia were
in the rear of Army Group North during the month of October
1941. (Tr. p. 2521 ; NOKW-3163, Pros. Ex. 1493.) Martin Sand-
berger, a defendant in Case No. 9, was chief of Sonderkommando
la of Einsatzgruppe A. His conviction and sentence of death
in that case was based upon murders committed during 1941,
when he was at all times active within the operational area under
von Leeb’s jurisdiction. Of particular interest is the following
finding by Tribunal II in that case* - (Case No. 9, Tr. p. 6819) :

“On 10 September 1941, Sandberger promulgated a general
order for the internment of Jews which resulted in the intern-
ment of 450 Jews in a concentration camp in Pskov * * *.
The Jews were later executed.”

Pskov was von Leeb’s headquarters prior to September 1941
until he resigned in January 1942. How much greater was the
power and responsibility of Field Marshal von Leeb and his
commanders of the 16th and 18th Armies, Panzer Group 4, and
the rear area of Army Group North than that of the insignificant
SS Colonel Sandberger? One might as well liken the “blazing
glory of the noon day sun to the tiny flicker of the firefly”.

The murderous collaboration between von Leeb’s troops and Ein-
satzgruppe A continued.

The localities mentioned in a series of four reports, covering
the period from the middle of October to the end of November
and proving the murder of approximately 1,800 persons with
the active participation of von Leeb’s subordinates, were in the

* United States vs. Otto Ohlendorf, et al., Vol. IV.

361

very front area of Army Group North as shown by the opera-
tional maps in evidence. (NOKW-31 60, Pros . Ex, 1490; NOKW-
8165, Pros, Ex. 1495; NOKW-3166, Pros. Ex. 1496). It should
also be pointed out that Sonderkommando la under Sandberger
or Einsatzgruppe A established an office in Pskov as early as
10 July 1941. ( NO-3401, Pros . Ex. 906). It was still there on
16 January and during substantially all of that period von Leeb
had his headquarters in Pskov. ( NO-3405 , Pros. Ex. 901).

A report of the 281st Security Division of the rear area of
Army Group North dated 1 August 1941 states that “200 Com-
munists and Jews from the district of Rezekne [Rositten] were
shot in the morning hours by the Latvian Home Guard.”
( NOKW-2150 , Pros. Ex. 962.) The slaughter of Jews at Rezekne
was repeated 4 days later; the same document reports:

“In the early morning of 5 August, several hundred Jews
were shot by the Latvian Home Guard. In order to forestall
any misinterpretation the division has established by inquiry
of the commanding general that this special operation was
ordered and carried out by order of the Security Service.

“The divisional commander presented the facts of the case
to the officers on the divisional staff at an officers' conference,
and added the grave reminder that every soldier had to abstain
from criticism of, and comments on these matters.”

The commander of the 281st Security Division knew the
slaughter of Jews was official army policy, and put these inci-
dents in his report to higher headquarters, but the field marshal
who commanded him testified he didn't know. The city of
Rezekne, Latvia, was in the rear area of Army Group North
before and after this mass murder, the units of the 281st Security
Division were stationed there during that time. ( Tr . pp. 2517 -
2518.)

Another example of blissful ignorance is the defendant von
Roques. From his headquarters was issued an order which reads
0 NOKW-2594 , Pros. Ex. 1575) :

“Executive measures against certain parts of the population
(in particular against Jews) are expressly reserved to the
forces of the Higher SS and Police Leader, especially in those
districts which have already been pacified.”

On 29 and 30 September 1941 about 34,000 Jews were
slaughtered by units of Einsatzgruppe C in Kiev ( NOKW-2129 ,
Pros. Ex. 951), which was occupied by troops which were sub-
ordinate to von Roques. His chief of staff visited the unit which
registered these killings on the day after the unprecedented

362

nassacre occurred. Nevertheless, von Roques denies that he ever
leard of the killing of the Jews in Kiev from his chief of staff
or anyone else. (TV. pp. 5492-5493.)

During the month of August 1941, 44,000 Jews were killed by
units of the Higher SS and Police Leader. {NO-3146, Pros. Ex.
943.) This dignitary was the representative of the Security
Police and the SD in von Roques’ area. (TV. p. 529 4.) He
usually had his headquarters in the same locality as the defendant
and frequently dined with him and his officers. (TV. p. 5471.)
But, strangely enough, von Roques did not learn what the tasks
of this man were. Twenty-three thousand of those 44,000 vic-
tims of von Roques’ dinner partner were killed in Kamenets
Podolsk during 3 days. (TV. p. 1145, NO-3154, Pros. Ex. 940.)
On 2 September von Roques’ chief of staff had a conference at
the headquarters of Army Group South in which the figures
“concerning the settlement of the Jewish question in Kamenets
Podolsk” were discussed. (NOKW-1554, Pros. Ex. 938.)

The Higher SS and Police Leader, however, was in no way
as reluctant and secretive as von Roques wants us to believe.
A report of his, a copy of which was forwarded to the defendant,
states unequivocally that 1,658 Jews had been killed in a mopping-
up operation. ( NOKW-1165 , Pros. Ex. 81.) Does it need to be
said that by a happy coincidence von Roques never learned about
the contents of this report? It should further not be assumed
that the Higher SS and Police Leader, having executed 44,000
in August, did not proceed to murder in September. A report of
19 September 1941 reveals that 1,303 Jews, among them 875
Jewesses over 12 years old, were executed by units subordinated to
him. The place of the massacre, Berdichev, was at that time the
headquarters of von Roques. (NOKW-3155, Pros. Ex. 1485.)

On 19 September 1941 the Jewish district Zhitomir was evac-
uated and all Jews of the place, 3,145 in number, were trans-
ported by 12 trucks, which had been placed at the disposal of
the Einsatzgruppen by the Feldkommandantur and the city
administration of Zhitomir, outside the city limits. The 3,145
Jews were registered and executed. Fifty to sixty pounds of
underwear, clothing, etc., were transferred to the National Social-
ist People’s Welfare Organization. This execution was carried
out on the basis of decisions which were made at a joint con-
ference between the representative of the Einsatzkommando and
the Feldkommandantur. There it was decided “to liquidate the
Jews of Zhitomir completely and radically”. ( NO-3140 , Pros. Ex.
945.) Zhitomir at that time was located in the rear area of
Army Group South, thus the Feldkommandant by whom these
killings were approved was subordinate to von Roques. (TV. p.

893964 — 51 -

363

5487; NOKW—3152, Pros. Ex. 1482; NOKW-3159, Pros. Ex.

1489 .)

Von Roques’ own witness admitted having watched an inci-
dent at the very outbreak of the war, when the Jews of Dobromil
were herded together in the market square by the SD, and the
Ukrainian militia. This happened in the immediate vicinity of
the defendant’s headquarters. Officers of von Roques’ staff were
present and observed this incident. (TV. p. 8944.) The witness
was under the impression that the defendant suffered a mental
shock as a result of this experience. (TV. p. 8927.) One of the
incidental effects must have been amnesia, as von Roques main-
tains that he never learned about the task of the SD.

When approximately 90,000 Jews were murdered by units of
Einsatzgruppe D ( NO-3359, Pros. Ex. 914), Woehler was chief
of staff of the 11th Army. In his capacity as chief of staff, he
wielded no executive power, but had command authority over
the members of the staff. These officers collaborated closely with
Einsatzgruppe D.

Ohlendorf testified, as a witness for Woehler, that the orders
for the commitment of Einsatzgruppe D and its subordinate units
were issued by the defendant. Woehler’s immediate subordinates,
the intelligence and counterintelligence officers, had complete
knowledge of the extermination task of the Einsatzgruppen and
worked with them every day.

Woehler asked Ohlendorf to turn over to the army all watches
obtained from “actions” against Jews ( NOKW-631 , Pros. Ex.
568), and when Ohlendorf complied with this request and re-
ported that a further shipment of watches from the “drive against
Jews” could be made available to the 11th Army if they were
needed, Woehler answered with an emphatic “yes”. ( NOKW —
8238, Pros. Ex. 1606.)

Woehler’s defense is that he was of the opinion that these
watches were obtained from Jews who had been “resettled”.
There is an answer in the record to the question of what such
“resettlement” meant. There are many documents in evidence
where a word in connection with the treatment of Jews is crossed
out and replaced by the word, resettlement. One of these reports
bears clear proof what the original word was. It reads ( NOKW -
1628, Pros. Ex. 891) :

“The (original word is crossed out and replaced by the
handwritten word ‘resettlement’) of the Jews, numbering about
2,500, was carried out on 1, 2, and 3 December. Subsequent
executions are to be expected since part of the Jewish popula-
tion fled, is hiding, and has to be apprehended first.”

364

Woehler received reports which stated that the indigenous
population was liberated “from the Communists and Jews who
had remained behind” ( NOKW-3236 , Pros. Ex. 1607) ; that
Sonderkommando 11a, a subunit of Einsatzgruppe D, was
“straightening out the Jewish question” in Nikolaev ( NOKW -
323 A, Pros. Ex. 1609), and that the “Crimea was free of Jews”
(NOKW-628, Pros. Ex. 916).

On 3 July 1941, the defendant issued an order that an Einsatz-
kommando of the Security Police should proceed to Beltsy.
(NOKW-3453, Pros. Ex. 1605). This Einsatzkommando promtly
killed the Jewish council of elders and 45 other Jews there. It
further directed the Rumanian police to shoot an unidentified
number of Jews. ( NO-2952 , Pros. Ex. 928).

On 9 July, an Einsatzkommando of Einsatzgruppe D reported
through the 11th Army ( NOKW-3J)53 , Pros. Ex. 1605) :

“On the basis of available wanted lists and newly compiled
records, on the 7th of this month the arrest of Jews and Com-
munists began. On the 8th of this month a large scale opera-
tion was conducted in the course of which it was possible to
catch all the leading Jewish elements with only a few excep-
tions. On the following day about 100 Jewish Communists were
shot by the Kommando. Counting also the executions of Jews
carried out by the Rumanian Armed Forces and police, a total
of over 500 Jews were shot in the course of the 8th and 9th
of this month. A detachment was sent to Hotin to screen that
place.”

Woehler’s counterintelligence officer received and copied the
report.

Woehler himself ordered the Einsatzkommando to remain in
Chernovitsy. 3,105 Jews and 34 Communists were liquidated in
this place by the Einsatzkommando. {NO-2837 , Pros. Ex. 858.)

On 4 August 1941, Einsatzgruppe D reported to the 11th Army
that 68 Jews and a number of Jewish hostages had been shot by
Sonderkommando 11a in Kishinev. Woehler read this report.
(NOKW-3233, Pros. Ex. 159 A). He previously had sent the
Sonderkommando to Kishinev with the order to seize Jews and
politically undesirable elements. ( NOKW-3557 , Pros. Rebuttal
Ex. 113). On the same day Woehler received a report that in
Kodyma 97 Jews had been executed by a unit of Einsatzgruppe D.
( NOKW-3237 , Pros. Ex. 1595). These Jews had been shot with
the approval of the defendant von Salmuth by an execution squad
consisting of 12 members of Einsatzkommando 10a and of 24
soldiers who belonged to units subordinated to von Salmuth
( NOKW-586 , Pros. Ex. 7 Ul) • Von Salmuth in turn was sub-
ordinated to the 11th Army.

365

On 14 November 1941, the Ortskommandantur of Simferopol
reported to the rear area of the 11th Army that “the 10,000 Jews
remaining are being executed by the SD”. ( NOKW-1573 , Pros.
Ex. 883). At that time Woehler’s headquarters was 15 to 20
miles away from Simferopol. ( Tr . p. 605 U.) The Oberquartier-
meister of the 11th Army, Woehler’s direct subordinate, was
located in the city itself. Nevertheless, Woehler wants the Tri-
bunal to believe that he never heard of the killing of Jews in the
area of the 11th Army. Einsatzgruppe D reported on the 12th
of December 1941 from Simferopol ( NO-2828, Pros. Ex. 893) :

“Shootings, 2,910 more Jews and 19 Communist officials were
shot after summary proceedings. Thus the sum total of execu-
tions has risen to 54,696.”

The final answer to this contention of all the defendants was
given by a young medical officer, the witness Dr. Fruechte {Tr.
VP- 9115-9117) :

“For every officer and for every enlisted man it was, at that
time, a matter of course that every Jew was shot. This sub-
ject was discussed with almost everybody with whom one
talked for more than three minutes. At least it was brought
up, and I have not talked to anyone who said, ‘That is com-
pletely new to me. I don’t know anything about it. What
are you telling me’. It was a completed fact for everybody.”

If Your Honors please, General Taylor will read the conclusion.
General Taylor : This concludes our discussion of the evidence
under the charges of the indictment. Many serious accusations
have not been dealt with: the “Nacht und Nebel” Decree formu-
lated by Lehmann ; the orders and practices for the execution of
hostages which played such a large part in the Hostage Case*;
the plunder of property and the wanton destruction and devasta-
tion of towns and villages ; the forced labor of women and chil-
dren on trenches and fortifications under the most rigorous con-
ditions of work ; and the conduct of von Leeb and von Kuechler
outside Leningrad. We have endeavored to select material for
discussion today with respect to which defenses have been raised
which are common to several or all of the defendants, in the
belief that such a selection would be most helpful to an appraisal
of the case as a whole.

In conclusion, we would like to deal briefly with the question
of mitigation. In some instances, the defendants were acting
in accordance with orders or decrees issued by superior military
authorities, and Control Council Law No. 10, like the London

* United States 4>s. Wilhelm List, et al., Case No. 7, this volume.

366

Charter, provides that such a circumstance “may be considered
in mitigation”.* In the cases of Keitel and Jodi, the Interna-
tional Military Tribunal was unable to find any circumstances
which could be considered in mitigation. Are the principal de-
fendants in this case in any better situation?

In his opening statement on behalf of the defendant von Leeb,
his counsel declared that these defendants were “unprepared for
the means with which Hitler fought”, that they “were not equal
to or able to cope with his demoniac personality”, and that “it
was too late when they recognized the true nature of this man”.
( Tr . p. 1761.) Assuming the truth of these observations, do
they indeed constitute a true measure of the defendant’s guilt?
Should these circumstances be allowed to mitigate responsibility
for this most terrible of all wars, for the overrunning of harmless
neutral neighbors, and for the countless deaths of commandos,
commissars, Jews, and other victims whose miserable fate the
evidence of this case has unfolded?

Again, the defense tells us repeatedly that these men were
caught up in an impossible situation which allowed of no solution
whatsoever; as Dr. Laternser put it, “it has been their fate to
arrive at situations and in particular to be brought into situations
by the leadership for which, even today, the prosecution cannot
suggest an escape that might have been open at the time.” ( Tr. p.
1775.) And the defendant von Leeb himself, after testifying
concerning his conduct with respect to the Commissar Order,
declared (Tr. p. 2353) :

“I have had ample time and opportunity to think about this
order and about what we did at that time under the pressure
of responsibility, and here I must admit I don’t know even
today any better way * * *, I really don’t know how we could
do it differently today.”

Were these men — these field marshals and generals — really so
enmeshed that it was impossible for them to avoid crime?

We should observe, at the outset, that it is not the duty of a
prosecutor in drawing an indictment, or of a tribunal in deter-
mining guilt or innocence, to tell the defendant how he should
have ordered his life. The man who has no problems — whose
material wants are satisfied, whose domestic life is contented,
and whose personality is in harmony with the circumstances of
his environment — such a man is rarely found in the defendant’s
dock. Crimes are most often committed when men find themselves
in difficult situations, subject to pressures, temptations, and fears.
The pangs of hunger, the lust for wealth and comfort, a dark and

* Paragraph 4(6) of Article II, Control Council Law No. 10, vol. X, this series, p. XVIII.

367

,

violent upbringing, the frustration of emotional needs, pressures
and fears — all these things help us to understand the criminal,
and why he became such. It is not part of the function of the
prosecution at the bar or the judge on the bench to explain to
the defendant what turn he should have taken at each fork in the
road in order to avoid the temptation or the fear which ultimately
led him into crime. Primarily, these are problems for the psy-
chiatrist and the penologist. But they do play a part, and
rightly — within the limits of the discretion vested in the judge —
when he comes to impose sentence, and for that reason we deem it
appropriate to make a few observations on this score. What is
the measure of the guilt of these defendants?

In approaching this problem, we suggest that there are at
least three questions, the answers to which will help to guide
us toward a wise solution. How strong were the pressures on
the defendants, and what paths were open to them? What is
their present attitude in retrospect toward their own conduct?
How will the decision as to the measure of their guilt affect other
persons in related situations, and what effect will it have on
organized human society?

On the first point, we must bear in mind that we are not
dealing here with the ordinary soldier who, in the company
of his comrades and subject to all the pressure of group behavior
and the violent atmosphere of combat, is ordered by his com-
manding officer to commit a criminal act. That is the ordinary
situation, to meet which the doctrine of mitigation by virtue of
superior orders was devised. Such a soldier is not accustomed
to responsibility or the resolution of difficult problems, is trained
to instantaneous and instinctive obedience, has no time for reflec-
tion, and is in imminent and mortal peril if he disobeys or even
hesitates. These defendants were not in that situation. Where
their crimes were instigated by orders from above, the orders
came in writing from a distant place, were received by the de-
fendants at a headquarters of which they were in command,
and there was full opportunity for reflection on the course of
action to be pursued.

To see what paths were open to these men, let us once again
look at the Commissar Order as an example. At bottom, von
Leeb’s defense comes down to his contention that he could not
openly oppose the order because, had he done so, his opposition
“would have become known immediately to the highest quarters
and * * * in any case, Hitler would have found out about this
strong opposition”. (Tr. p. 2351.) Therefore, since he dis-
approved the order, his only avenue of escape was what he called
“tacit sabotage”.

368

A moment’s reflection will show that this is utter nonsense
and a post-fabricated excuse. It is perfectly obvious that the
Commissar Order had to be opposed openly or not at all. The
order had been announced at a meeting with Hitler at which all
of the principal commanders in chief were present. A number
of people participated in drafting it, and copies were dispatched
to all the principal headquarters on the eastern front. Hitler’s
intention to issue such an order, and subsequently the existence
of the order itself, immediately became known throughout the
higher circles of the army. Himmler’s SS also had functions
to perform in connection with the Commissar Order, and its
existence was known throughout the SS and SD on the eastern
front. Let us assume that von Leeb and the other defendants,
when they passed the order down, actually did what they now
say they did. Let us assume that they personally passed down
firm instructions that the order was not to be complied with,
and the information that the commander in chief of the army
and all the field commanders in chief were opposed to the order
and had directed that it not be observed. What would have
happened?

The answer is perfectly clear — the order would not have been
carried out by the troops of the German Army, and their failure
to carry it out would have soon become known to Hitler and
the OKW. Hardly a week could have passed before the Einsatz-
gruppen and the screening teams of the SD would have observed
that the army was not carrying out the order, and reported their
failure to Himmler. Hardly more time could have elapsed before
ordinary military channels of information — intelligence reports,
visits to Berlin by officers on leave from the front, reports of
liaison officers from the High Command of the Army and the
OKW — would have made it apparent to Hitler and the OKW that
the order was not being obeyed. Indeed, in the happier days
before the documents established that the Commissar Order was
in fact passed down and was in fact executed, counsel for the
generals took the position that the Commissar Order was not
passed down, or was passed down with directions to disobey it —
and, exactly in line with what we are now saying — that this
pattern of conduct constituted open opposition to the Commissar
Order : * “The commanders in chief of the army groups and armies
either did not pass this order on to their troops at all, or they
ordered, on their own authority, that it should be circumvented.
They did so in full consciousness of the danger that they might
be heavily punished for open disobedience in war to an order
of the Supreme Commander.”

* Closing Statement of Dr. Lateraser before the IMT. Trial of the Major War Criminals,
op. cit. supra , vol. XXII, p. 77.

369

When we say that the Commissar Order had to be opposed
openly or not at all, we of course refer to the general pattern of
conduct of the commanders in chief as a group. It probably would
have been possible for one or two individual commanders secretly
to disobey the order by merely throwing it in the waste basket and
not passing it down to their subordinates. That is what Dr.
Laternser tells us Field Marshal Rommel did with the Commando
Order. That is what the defendant von Leeb told us he did with
respect to the Fiftieth Corps and the army group rear area, and
that is what the defendant von Kuechler told us he could not do
with respect to his subordinate units. This device of secret dis-
obedience might have furnished a personal solution for a few of
the commanding generals, but if adopted by all it would, of course,
speedily have attracted attention and amounted to the equivalent
of open disobedience.

In short, the idea of “tacit sabotage” of a widely-known, highly
controversial order such as the Commissar Order is as apocryphal
as the Phoenix or the unicorn. That is precisely why the defend-
ants were led into such a maze of self-contradictions and absurd-
ities in their desperate efforts to make the unicorn come to life.
That is why we hear in one breath that most commissars com-
mitted suicide or ripped off their insignia in fear of what they
knew would be their fate, and in the other that the order was not
carried out. That is why we are told one minute that the reports
of executions were concocted to deceive higher headquarters, and
the next minute that the reports prove so small a number of exe-
cutions that disobedience to the order must have been the rule.

Secret disobedience, accordingly, was impossible for more than
a few and “tacit sabotage” is a myth. When von Leeb and the
other defendants received the Commissar Order they could either
have swallowed it or refused to obey it. The proof clearly estab-
lishes that they swallowed it, and the defense evidence proves only
that when they swallowed it, it may have tasted bad. And he
who swallows an order such as the Commissar Order must
be prepared to take the consequences. It is all very well to talk
about the necessity for obedience to orders and the maintenance
of discipline, but when we are concerned with an order such as
the Commissar Order which, instead of promoting discipline,
undermines it, an order which the defendants all claim constituted
an egregious example of military stupidity, an order which directs
the commission of murder on a vast scale, and an order which the
defendants well knew was a shame and a blot on the army to
which they had devoted their lives, there is but one conclusion. No
man could serve his army or his country by obeying such an order.

It is academic to debate the question whether, if all the corn-

370

manders in chief had openly declared their unwillingness to obey
the Commissar Order, the result would have been a modification
of the order, or their dismissal and replacement by other generals.
It is academic and speculative to debate whether they would have
had a better chance of changing Hitler's mind by a less ostenta-
tious manifestation of disagreement which might better have
enabled him to save his face. In any event, there is absolutely no
basis to assume that a dignified expression of unwillingness to
comply with an order which was not only criminal but stupid
would have had no effect on Hitler. Whatever may have been
Hitler's other faults, he was not totally without intelligence, and,
at least until the later stages of the war, there is no indication
that he felt he could get along without generals to lead his troops.
Throughout the war, Hitler never turned to anyone but the gen-
erals to lead his troops, except in two or three instances out of
hundreds.* Why was the defendant von Leeb himself called back
from retirement in 1938 and again in 1939 although, according
to his own testimony, he was in disfavor with Hitler and Himmler
because of his religious convictions and other manifestations of
opposition to nazism? As the defense witness Haider testified,
Hitler was unable and unwilling to replace even the generals whom
he mistrusted “because at least at the beginning, he did not think
that he could forego the expert knowledge of these generals", and
this attitude on Hitler's part continued “approximately until the
end of 1941 and the beginning of 1942", many months after the
issuance of the orders involved in this case. ( Tr . p. 2026.)

The defendants have told us that they would have been reluctant
to resign in protest against such orders as the Commissar Order,
because that would have involved an abdication of their responsi-
bility towards their troops and would merely have led to their
replacement by others who would have been more willing to con-
form to Hitler's desires. Yet, when Hitler began to interfere seri-
ously in tactical matters at the time Haider mentions, the generals
resigned in droves. Von Leeb and Hitler came to a parting of the
ways because of a disagreement on tactical matters and 3 years
later the same thing occurred between Hitler and von Kuechler.
If it was abdication of responsibility towards the troops, and an
invitation for replacement by weaker men, to come to an open
break with Hitler over the Commissar Order, or the Barbarossa
Jurisdiction Order, or any of the other criminal orders, it was
equally an abdication to come to a break because of tactical dis-
agreements. And whether or not it was theoretically possible to
resign one's command voluntarily, it was perfectly easy, as von

* During the last years of the war, Himmler, Sepp Dietrich, and one or two other SS
leaders were given high military commands.

371

Kuechler put it, to “make demands in such a way that a break
must occur”. ( Tr , p. 2982.) The records of the German field
marshals and generals are full of just such instances where a
resignation was accepted, or where Hitler on his own initiative
relieved a commander, because of tactical disagreements. It is per-
fectly plain, in short, that the German generals thought that tac-
tical matters were sufficiently vital to warrant forcing matters
with Hitler to the breaking point, but did not so regard the crim-
inal orders and policies which are the subject of this proceeding.
It is not for the prosecution to say whether any particular defend-
ant should or should not have resigned, or have openly declared his
refusal to obey an order such as the Commissar Order, or adopted
some other solution of the problem. The choice between these
several alternatives would, for any individual, be governed by his
temperament and his estimate of the over-all situation at the time.
But that there were solutions to this problem other than that which
the defendants adopted is perfectly plain.

To conclude on this point, we must not forget that one can
find no basis for mitigation in a superior order, if there is no
evidence that the defendant’s will was affected and coerced by the
order. If the defendant’s will coincided with that of the superior
who issues the criminal order, or if, having full opportunity for
reflection and choice, he makes no serious effort to avoid the com-
mission of crime, there is no basis for mitigation and we find the
defendants — such as Hoth — actively furthering the objectives of
these criminal orders by stirring up the troops to hatred of the
Jews, we must conclude that these are circumstances not in miti-
gation but in aggravation.

To turn to the second question, have the defendants demon-
strated here an attitude in retrospect toward their own conduct
which invites judicial clemency to find circumstances in mitiga-
tion? There are many new roofs in Nuernberg: can we see recon-
struction under way in this courtroom? Regretfully, such is not
visible from where we sit. The defendants have not hesitated to
resort to inconsistent and implausible excuses, and have denied
knowledge of things which must have truly assailed all their seven
senses. The defendants are not sleepy, unobservant, or insensitive
men. The defendant von Leeb, for example, is a cultured and
highly intelligent person, fully alive to the moral factors in a
situation ; to see this we need look no further than his correspond-
ence with von Brauchitsch concerning the offensive in the West and
the violation of the neutrality of the Low Countries. He dis-
trusted Hitler, and was disgusted with Himmler’s policies and —
to say the least — suspicious of his organization. He knew of the
atrocities of the SS in Poland. He heard Hitler in March 1941,

372

outline a barbaric and terrible program of warfare in Russia. He
saw the Commissar Order and the Barbarossa Jurisdiction Order
emerge. He knew that units of Himmler’s SS were coming with
his own troops for special political tasks. He says that he com-
plained about these matters to his commander in chief and to his
fellow commanders, and his staff must have been aware of this.
His headquarters received orders for the screening of prisoners
and the liquidation — the murder — of “undesirable elements”. His
headquarters received reports of the murder of commissars. Thou-
sands upon thousands of Jews and others were murdered in his
operational area. It is quite incredible that such a man as von
Leeb under all these circumstances would have known nothing
about these murders and atrocities. We do not believe that his
denial of such knowledge furnishes the basis for mitigation or
leniency.

Finally, we cannot fix our gaze exclusively on the defendants’
dock. The acts of the defendants profoundly affected millions of
other men, and the decision in this case is not to be rendered in
a vacuum. The judicial process is a social process. There are
others to be considered beside the defendants, and I do not refer
to the millions who lie buried because of the events related by the
record of this case. They, too, have their claim to make here, but
their strongest claim is that these things should not be repeated.

The doctrine of mitigation by virtue of superior orders is a doc-
trine, the purpose of which is to protect those whose opportunity
for reflection, choice, and the exercise of responsibility is non-
existent or limited. In modern military organization, the chain of
command runs up from the ordinary soldier through his officers
to the military commander in chief and then to the Supreme Com-
mand, which may be lodged in a chief of state, a president, a
cabinet, or other civilian agencies. Within this structure, every-
one is subject to orders, even if he is a field marshal. Obviously,
the doctrine of mitigation by superior orders is not intended to
give a blanket protection to anyone, no matter how highly placed,
merely because he is in the military hierarchy and responsible to
someone else. Otherwise, the entire doctrine of individual respon-
sibility would be destroyed, and the chief of state himself would
be the only one who could not claim mitigation.

That is why, may it please the Tribunal, the prosecution firmly
believes that it would be unwise, and unfair to the millions of
troops who served under these defendants, to give weight to the
doctrine of superior orders as applied to such defendants as von
Leeb, von Kuechler, Hoth, and others whose positions were at or
near the top of the military hierarchy. Countless criminal out-
rages occurred in the sphere of command of these defendants.

373

Somewhere, there is unmitigated responsibility for these atrocities.
Is it to be borne by the troops? Is it to be borne primarily by the
hundreds of subordinates who played a minor role in this pattern
of crime? We think it is clear that that is not where the deepest
responsibility lies. Men in the mass, particularly when organized
and disciplined in armies, must be expected to yield to prestige,
authority, the power of example, and soldiers are bound to be
powerfully influenced by the examples set by their commanders.
That is why we said, in our opening statement, that “the only
way in which the behavior of the German troops in the recent war
can be made comprehensible as the behavior of human beings is
by a full exposure of the criminal doctrines and orders which were
pressed upon them from above by these defendants and others”.
Who could the German Army look to, other than von Leeb and
the senior field marshals, to safeguard its standards of conduct and
prevent their disintegration? If a decision is to be rendered here
which may perhaps help to prevent the repetition of such events,
it is important above all else that responsibility be fixed where it
truly belongs. Mitigation should be reserved for those upon whom
superior orders are pressed down, and who lack the means to influ-
ence general standards of behavior. It is not, we submit, available
to the commander who participates in bringing the criminal pres-
sure to bear, and whose responsibility it is to ensure the preserva-
tion of honorable military traditions.

C. Extracts from Closing Statement for the
Defendant Reinhardt*

Dr. Frohwein (Counsel for the defendant Reinhardt) : May it
please the Tribunal.

On 8 June of this year a representative of the prosecution gave
an interview over the German radio concerning this trial, which is
now drawing to a close. In this interview he stated, among other
things, that hardly any of the trials held previously in Nuernberg
were “so well substantiated by documentary evidence” as this one.

I concur with the statements of the representative of the prose-
cution in that, at the beginning of this trial, the prosecution did,
in fact, submit great numbers of document books. However, I am
of the opinion that in no way is the course of a trial contingent
upon the number of document books. For in the final analysis it is
not the number of document books, but rather the weight and

* Complete closing statement is recorded in mimeographed transcript, 11 Augxist 1948, pp.
9743-9778.

374

probative value of the individual documents which are of decisive
importance.

Even in looking through the document books of the prosecution,
I discovered that the documentary material submitted by the prose-
cution against General Reinhardt revealed serious deficiencies in
every respect.

The prosecution was not even able to offer proof at all for some
overzealously advanced allegations against General Reinhardt. If,
in some cases, the prosecution could not, with the best of inten-
tions, construe a connection of a certain document with General
Reinhardt through oral statements when the documents were sub-
mitted, it at least connected General Reinhardt with documents by
recording his name in the index of the document book, in order
in this way to imply his incrimination. In other cases in which,
at first glance, a document consisting of several parts indicated
that General Reinhardt, contrary to the allegation of the prose-
cution, could not possibly have had anything to do with the inci-
dents described in this document, the prosecution simply omitted
the exonerating parts of the documents in the English document
books, which alone were comprehensible to the Tribunal.

Apart from such cases of a varying nature, a large portion of
the prosecution’s evidence contained only extracts from original
documents. If in the case of particularly long documents or com-
prehensive armed forces records, the prosecution had restricted
itself to submitting pertinent and relevant extracts, omitting the
immaterial parts, this would have been acceptable. However,
when excerpts are submitted in such a way — as was often the
case — that only isolated sentences or paragraphs were taken out of
context, then the Tribunal is deprived of the possibility of recog-
nizing the association which is so very important for the evalua-
tion of the document. This is of particular importance in assess-
ing military orders or military entries in war diaries.

My objections to the prosecution material, however, were espe-
cially strengthened through an examination of the original records
from which the prosecution took its evidence material. I am
grateful to the Tribunal for making it possible for me to look
through at least a part of these original records. Although this
great amount of work had to be done in a comparatively short
period of time during the trial, and in view of the fact that I did
not have as many assistants at my disposal as did the prosecution,
I can, at least, state that a perusal of these Washington records
in the case of General Reinhardt led to especially informatory
results which were of great importance for the defense.

In many cases the complete documents from which the prose-
cution submitted only a fraction, presented quite a different pic-

375

tore, and constituted an exoneration of General Reinhardt rather
than an incrimination. This is particularly true with reference
to the entries in activity reports, war diaries, and the like, if one
only makes the effort to read the previous and subsequent entries.
In those cases I submitted the necessary supplementary parts of
the documents as defense documents with reference to prosecution
documents.

Further, I found a large number of orders issued by General
Reinhardt among the Washington documents which the prosecu-
tion, in making its completely one-sided selection of material,
did not wish to consider, and included these in my document books.
These documents, for the most part, show quite clearly that the
statements of the prosecution concerning General Reinhardt are
not in their entirety consistent with the facts; that rather his
attitude in all decisive cases was quite different from that which
the documents selected by the prosecution purport to show. If
there still existed any doubt as to whether the prosecution em-
ployed these methods for the express purpose of confusing the
true facts, then yesterday’s plea by the prosecution dispels any
such doubt. I shall demonstrate this particularly at two points.

Moreover, in looking through the original records I feel com-
pelled to state that the prosecution proceeded in a manner which
goes beyond all my powers of comprehension. The Chief Prose-
cutor, General Taylor, in his opening statement laid particular
stress on one case, and quoted portions of a document thereby
purporting to characterize General Reinhardt as a murderer of
many innocent men, women, and children. This was a report
in which the murder of the entire population in the Slutsk area
by the Security Service was described. This report was enclosure
2 of a document consisting of three parts. By submitting this
enclosure 2, the prosecution wanted to prove that this killing
of the population had taken place upon the instigation or, at
least, with the sanction of General Reinhardt. The main docu-
ment and enclosure 1, however, show quite clearly that when
General Reinhardt learned of this case he was induced not only
to inform the army group of this outrageous incident, but at the
same time he, himself, made a detailed recommendation for the
decent and humane treatment of the Russian population. I only
mention here in passing that this incident occurred hundreds of
kilometers outside his army area, and that the killings were
carried out exclusively by the Security Service and the police
and not by the troops of General Reinhardt.

The entire document, that is, the main portion and the en-
closures 1 and 2 were photostated together at the time by the
American investigation authorities, as is proved quite clearly

376

by the photostat numbers. Therefore, there can have been no
doubts as to the actual connection between the documents; and
yet in spite of this fact, the prosecution used this partial docu-
ment as the chief incriminating document against General Rein-
hardt.

Thus, in the case of General Reinhardt we see how the “trial
so particularly well substantiated by documentary evidence” ap-
pears in reality. I must leave it to the Tribunal to arrive at its
own judgment in this respect, but permit myself to call attention
to a remark made by the Chief Prosecutor, General Taylor, him-
self in his opening statement:

“The issues in this case are far too grave to warrant any
tricks of advocacy; the evidence is sufficiently compelling and
will provide its own eloquence.”
*******

D. Extracts from Closing Statement for the
Defendant Warlimont 1

*******

Dr. Leverkuehn (counsel for defendant Warlimont) : The
prosecution made some remarks which were astonishing because
they were advanced with the authority of the uniform of the
United States Army. They relate to superior orders. The prose-
cution emphasized repeatedly: no mitigation by superior orders.

The prosecution starts from the concept, evolved around the
IMT, its charter, its decision, and the law following this decision,
that obedience to orders is not a valid excuse. This concept as
now propagated belongs to the same nonstatic character of inter-
national law which I mentioned in connection with the problem
of aggressive war. If a vote were taken today on this subject
and the Russian vote not counted, there is very reasonable doubt
as to what the result would be.

The British vote as voiced before this Tribunal was “most
emphatically, no ”. 2 No — that means no breaking of the tradition.

And this tradition is expressed by the greatest American
authority on military law as follows (W. Winthrop, Military Law
and Precedents , 2d Edition 1920 , p. 571) : #

“Obedience to orders is the vital principle of the military
life — the fundamental rule, in peace and in war, for all inferiors
through all the grades from the general of the army to the

1 Complete closing statement is recorded in mimeographed transcript, 12 August 1948, pp.
9895-9910.

2 Cf. testimony of Captain Russel Grenfell in Section VI D vol. X, this series.

377

newest recruit. This rule the officer finds recited in the com-
mission which he accepts, and the soldier, in his oath of enlist-
ment swears to observe it. As in the British system, all
military authority and discipline are derived from one source —
the Sovereign, so in our army every superior, in giving a lawful
command, acts for and represents the President, as the Com-
mander in Chief and executive power of the nation, and the
source from which his appointment and authority proceed.
Hence the dignity and significance of a formal military order,
and hence the gravity of the obligation which it imposes upon
the inferior to whom it is addressed. The obligation to obey is
one to be fulfilled without hesitation, with alacrity, and to the
full ; nothing short of a physical impossibility ordinarily excus-
ing a complete performance.”

The consequence of this rule is (op. cit. supra, p. 296-297) —
'That the act charged as an offense was done in obedience
to the order — verbal or written — of a military superior, is, in
general, a good defense at military law.

“* * * f or |.j ie j n f er j or assume to determine the question of
the lawfulness of an order given him by a superior would of
itself, as a general rule, amount to insubordination, and such
an assumption carried into practice would subvert military
discipline. Where the order is apparently regular and lawful
on its face, he is not to go behind it to satisfy himself that his
superior has proceeded with authority, but is to obey it accord
ing to its terms, the only exceptions recognized to the rule ot
obedience being cases of orders so manifestly beyond the legal
power or discretion of the commander as to admit of no rational
doubt of their unlawfulness.”

The author therefore advises the officer —

“Except in such instances of palpable illegality, which must
be of rare occurrence, the inferior should presume that the
order was lawful and authorized and obey it accordingly, and
in obeying it he can scarcely fail to be held justified by a
military court.”

The basic rule is obedience to order, the exception is the duty
to disobey. The Tribunal will undoubtedly examine very carefully
in each of the innumerable incidents brought before it as criminal
acts, whether the subordinate was able and bound to recognize
that a superior order was illegal, and what he did or could do
to avoid obedience.

*******

378

E. Closing Statement for the Defendant Lehman 1

Dr. von Keller (counsel for the defendant Lehmann) : Your
Honors, I have ventured to give an unofficial translation of the
plea to the Marshal of the Court for the benefit of the Tribunal.
The official translation will be rendered through official channels
via the translation branch.

Presiding Judge Young: We appreciate that and we will use
that to follow your argument generally in this manner with the
understanding that the other translation will be the one that is
incorporated in the record.

Dr. von Keller: Mr. President, Your Honors!

Some weeks ago the Military Governments of the United States
of America, Great Britain, and France ordered a number of
measures for the three Western Zones of Germany which they
designated as currency reform. Apart from the — perhaps final —
political and economic division of Germany in two parts, these
measures comprise devaluation of the ready money and of the
bank accounts, in relation of 1 to 10. The three military govern-
ments expressly took over the full responsibility for these meas-
ures. On occasion of the Peace Conference in Paris in 1919, the
same states ordering this currency reform compiled a report in
which a number of actions are listed as war crimes. Military
Tribunal III in its judgment against Altstoetter and others ex-
pressly refers to this declaration (Lehmann 452, Lehmann De-
fense Ex. 311). Count 16 of this list mentions as a war crime
“depreciation du systeme monetaire”, devaluation of money.

In a trial in which rules of international law are under dis-
cussion it will not be unnecessary to premise this fact as an
example for the changeability of considerations of international
law, before dealing with the material of this case and the charges
against my client.

The factual and legal material of this trial is enormously ex-
tensive. I shall not be able on this spot to deal with all the
charges of the prosecution against my client. The Tribunal
prescribed a limited time for the final pleas and ordered that
the further argumentation is to be summed up in a closing
brief. 2 The Tribunal ordered furthermore that — contrary to the
previous custom in the Nuernberg trials — between the close of
the evidence, which took more than 6 months, and the final pleas,
only one day of recess could be granted. These two restrictions
are binding for me, so that I can submit to you only a part of what

1 Tr. pp. 9947-9977, 13 August 1948.

2 Dr. von Keller later filed a final brief on behalf of the defendant Lehmann, extracts from
which are reproduced in Section F 6.

893964—51 26

379

seems to me of importance in the case of Lehmann. As to the
incriminating facts I shall confine myself to four main points.

1. The decree concerning the jurisdiction in the area Bar-
barossa.

2. The Commissar Order.

3. The Commando Order.

4. The Night and Fog Decree with the so-called terrorist order
replacing it later.

I shall pay special attention to the position and the sphere of
tasks of the defendant Lehmann.

But before discussing these particular points, I must point
once more to the basic problem of the Nuernberg trials, the
problem of the historical background.

Who is to judge as to whether or not the captain of a ship acted
correctly in the discharge of his duties cannot but examine in
detail the circumstances to which this man had been subject.
He has to take into consideration the location of the ship, power
of the wind, motion of the sea, visibility, seaworthiness of the
ship, and many other points which were of importance for the
captain and his actions. He must visualize the roaring of the
storm, the turbulence of the waves, the danger of suddenly run-
ning ashore, the necessity of immediate decisions, in order to
understand the reasons for which the captain took this measure
or that. He must be aware of the psychological pressure on a
man who bears highest responsibility, whose superstructure is
removed by the storm and who must abandon perhaps a part of
the cargo in order to save the ship itself. The obligation to
imagine this situation will be the greater, if he never experienced
the force of the elements.

For this reason, Your Honors, during the evidence I endeavored
to go beyond the narrow frame of the orders with which my
client has been charged. I endeavored to draw the picture of
the chaotic time during which the former Chief of the Legal
Department of the Wehrmacht had to be active in order — like
the captain of a ship — to steer and to save the sphere of activity
entrusted to him from the dangers of a merciless totalitarian era.
I will not repeat here to what an extent the administration of
justice was relegated to the position of an unwanted intruder
within the Third Reich, to what extent Hitler, the Party, the
Gestapo, and the SD tried to snatch one field after the other
from the Wehrmacht administration of justice. I may remind you
of the general attacks directed against the Wehrmacht adminis-
tration of justice with regard to the so-called political crimes of
the Wehrmacht members as well as offenses of inhabitants of
the occupied countries; I may remind you of the personal inter-

380

ventions of Hitler in specific trials, testified to by my client and by
other witnesses of the defense, which prove sufficiently how strong
the forces were against which the administration of justice of
the Wehrmacht had to contend. To these internal curtailments
of competence are to be added the problems which the develop-
ment of modern warfare brought about. The activity of the
francs-tireurs, organized on the part of our adversaries to an
unprecedented extent, the sabotage, the underground resistance
in the occupied countries, the use of means exterminating big
masses and the bombardment of practically defenseless dwelling
places on the part of the Allies, created formerly unknown situa-
tions and problems which required immediate answers. Not only
Hitler fought the foundations of law which had been valid up to
then, but in the whole world things had gone so far that people
denied the binding force of custom and law, degraded “law” to
a mere word, and used it only as means of propaganda and as a
camouflage of brutality.

This historical background must not be forgotten when a
judgment is to be pronounced on men from this era. The ac-
tivity of the defendant Lehmann can only be seen in the frame
of these historical relations, and this manner of considerations
alone can lead to a just judgment.

First of all I shall deal with the decree concerning the Bar-
barossa jurisdiction.

The defense is quite aware of the fact that in view of the insuffi-
cient means at its disposal, it is quite impossible to convey a clear
idea of the explosion of forces engendered by the clash of two
totalitarian systems, two systems determined to fight with all
their might and in the clear perception that this struggle could
only end with the complete extermination of one of the two ad-
versaries. At the beginning of the war against Poland, Hitler had
declared, “Let us burn the boats. We are no longer concerned
with the problem of right or wrong, but with the question of
the existence or nonexistence of 80 million people.” And in the
radio speech of 3 July 1941, Stalin used the following words:
“The war against Fascist Germany cannot be considered as an
ordinary war, it is not only a war between two armies, it is the
great war of the entire Soviet people against the Fascist German
troops.”

And the course of this war proved in reality that it was a
struggle of the peoples for life and death and that the warfare
of the Soviet Union, especially the illegal guerrillas, constituted
an entirely new and extremely severe danger for the German
Wehrmacht.

“The Army has to defend itself by the same means by which

381

it is attacked”, and “that is no problem concerning the courts
martial”, this was declared at the meeting of 30 March 1941.
The defense against these new methods of warfare was there-
fore considered as a task of a purely military operational char-
acter, and nobody — not even today — would deny the right of
the German leaders to fight guerrilla-infested areas by means of
air raids, even though the bombs might hit innocent persons.
The cases of Dresden, Hamburg, Hiroshima, and of hundreds of
other towns show that the Allied military leaders also deemed
such actions admissible, even in cases where no guerrilla-infested
areas were concerned, but dwelling places of noncombatant
civilians.

If these things are placed in their proper perspective, it can
be seen now how unimportant Dr. Lehmann's endeavor was — if
the storm once unleashed could not be fought — to steer his
small vessel, the jurisdiction of the Wehrmacht, through the
clash of two worlds. He was only insufficiently informed of the
situation, of the methods of warfare to be expected from the
enemy, and of the German intentions. He was not called in for
the discussion of the commanders of 30 March 1941, which proves
the small significance attributed to his part in the frame of the
whole matter. When he learned from Keitel of Hitler's decision
that the Wehrmacht judges should not be taken along in case
of war against Russia, and when he got the order to phrase this
decision in the form of a command, this idea seemed to him
so inconceivable that he reacted with open opposition. Only
in this sense can his proposal be understood, to exclude all the
jurists from Wehrmacht jurisdiction and to employ them —
including the heads of the legal departments of the four High
Commands — as soldiers; and authoritative quarters thus inter-
preted the proposal. Only after, in the following discussions with
Keitel, endeavors to preserve military jurisdiction had failed and
further proposals to this effect failed, Lehmann resolved to
achieve at least a clear definition of responsibilities between army
and courts. Such a clear distinction had to be achieved, because
the distrust of the political leaders against Wehrmacht adminis-
tration of justice had already taken such forms that there was
a danger of immediate radical encroachments.

The jurists concerned took it for granted that the decree
was considered only as preliminary measure for the first phase
of the war, the phase of mobile warfare. Therefore, very soon
they asked for reestablishment of jurisdiction.

These considerations formed the basis of the interoffice remarks
of Dr. Lehmann as to the last drafts for the Barbarossa Jurisdic-
tion Order. The prosecution documents might convey the impres-

382

sion that the decisive questions were discussed in them. But in
reality the submitted documents, as proved by the evidence,
date from a period after Lehmann’s fundamental objection had
already failed and the struggle for the full preservation of Wehr-
macht jurisdiction had been lost. The prosecution apparently
wants to attribute all events in the East, which in their opinion
are contrary to international law, to the Jurisdiction Order, and
to charge Dr. Lehmann with the alleged authorship thereof or
instrumentality therein. As a result of the abrogation of juris-
diction — so the prosecution states — hundreds of thousands of
civilians were killed deliberately and without any trial.

That the abrogation of the courts martial by Hitler is to be
considered as a war crime, is very honorable for German military
jurisdiction. But how can this remark of the prosecution be
reconciled with the events in the Balkan countries? There, a
Barbarossa order did not exist. And in spite of this the same
charges have been made against German warfare in the Balkans.
As to the Russian area, it must be expressly emphasized that the
activity of the SS and actions against political Commissars are not
to be considered in evaluating the real significance of the Bar-
barossa Jurisdiction Order, because the courts martial was ex-
pressly excluded from these two fields.

Only the procedure against francs-tireurs is to be examined
here. The evidence has proved that the guerrillas were contrary
to international law in Russia as well as in the Balkan countries.
According to the judgment of military Tribunal V,* members of
illegally fighting groups, when they fall into the hands of the
enemy, have no claim to treatment as prisoners, but have for-
feited their life. This is also the opinion of important writers
on international law. Never and nowhere has a trial been re-
quired. The Hague Convention of 1907 prescribes trials in land
warfare only for the punishment of spies. Oppenheim concludes
from this provision that no trial is necessary for spies in sea war-
fare. If this interpretation is correct, then the same must be
true of all other cases of war crimes, the punishment of which
is not mentioned in the Hague Convention. In the German war-
time rules of penal procedure it was determined — beyond the
regulation of the Hague Convention — that foreigners were not to
be punished without previous trial. But this regulation depended
on the reservation of reciprocity, and this reciprocity was not
assured in regard to Russia. The German leadership was there-
fore entitled to entrust to an officer — instead of a court — the
decision on punishment of Russian civilians, who had been found
guilty of guerrilla activity, of sabotage or similar attacks against

* United States vs. Wilhelm List, et al., Case No. 7, Vol. XI.

383

the German Wehrmacht. This was no invention of Hitler’s ;
the authority of every commanding officer to proceed against
francs-tireurs taken in the very act, according to the custom
of war, that is, without a trial, had been valid law in Germany
until the time after the First World War, according to an imperial
decree of 1899; and it is remarkable that this provision based
on war customs was not questioned at the Hague Conference in
1907 by the states participating in it.

I reserve the right to deal in detail with the problem of re-
prisals in this connection. Now I shall confine myself to the
statement that the Jurisdiction Order was not directed against
peaceful civilians, but only determined the measure to be taken
if illegal attacks occurred on the part of the civilians. Up to now
I examined the procedure against hostile actions by civilians only
from the point of view of the Hague Convention. But in the
case of the Soviet Union, the Soviet domestic conditions must
also be taken into consideration. In order to avoid repetitions
I refer to the expert opinion of Professor Maurach submitted by
the entire defense. The opinion of the expert leads to the
following result:

“The position of the Soviet civilians in legal respect had not
become worse by reason of the Barbarossa Jurisdiction Order.
Guarantees for the procedure as provided for in the trial before
the courts martial — which as such is a summary one — (hearing,
defense in open trial, petitions for pardon) had not been
granted to the Soviet civilian by Soviet domestic law. It makes
no material difference whether the sentence is pronounced by an
officer or by a functionary of the political police.

“The order of 13 May 1941 cannot be presumed to have en-
croached on the so-called elementary rights of the civilians.”

If Dr. Lehmann — contrary to every reasonable expectation —
had succeeded in making his objections prevail against Hitler’s
will and in maintaining the competence of the courts martial
against civilians in Russia, as was the case in other occupied
countries, developments would have submerged such a regula-
tion. A clear proof is offered by [Document NOKW-068] Prose-
cution Exhibit 651 : When courts martial called to account mem-
bers of the army because of their conduct in guerrilla warfare
and when Hitler was informed of that, a Fuehrer order set aside
the courts and excluded them with one stroke of the pen, without
Dr. Lehmann or his department having been consulted. But also
all the orders which the OKH and the OKW gave to the army
for the proceeding in guerrilla warfare are proof for the irre-
sistible power of development. The numerous reports submitted

384

by the prosecution with the number of francs-tireurs and of
persons who had supported francs-tireurs furnish a further
clear proof. Dr. Lehmann and his department did not partici-
pate in one of the aforesaid orders for the army, Dr. Lehmann
did never see such a report. The counter measures against sedi-
tious movements of such an extent — that must be admitted if
one looks back now — were not a task of the courts martial.

As to the second part of the Jurisdiction Order, concerning the
obligation to prosecute crimes committed by German soldiers
against civilians of the occupied countries the prosecution de-
clared this part to be more wicked. It considers it a privilege
for German soldiers to commit crimes against civilians without
punishment. If Hitler had had such an idea when issuing
the order to rescind the obligation to prosecute, then Dr. Lehmann
is fully entitled to point out that he, Lehmann, succeeded in pre-
venting such an intention. He included in the decree the provision
that courts martial had to enter into action, if the maintenance
of discipline required it. In practice, as has been proved during
the evidence, this provision opened a wide field and gave to
every commander and Gerichtsherr the possibility to pronounce
the well merited punishment in every case which required such
a measure. In this whole complex and especially regarding this
point Dr. Lehmann collaborated closely with the chiefs of the
legal departments of the three Wehrmacht branches. It is true
that his suggestion to induce the high commanders of the Wehr-
macht branches to fully contradict Hitler’s decree was unsuccess-
ful, but it was planned that the army — the branch of the Wehr-
macht which was most interested in the matter — should issue
supplementing regulations which practically would bring about
the contrary of the intended rescindment of the obligation to
prosecute. This really happened, the additional order of the
army issued at the same time as the Jurisdiction Order, the so-
called discipline decree of von Brauchitsch, was anything but a
privilege for crimes against civilians. After the beginning of
the war Dr. Lehmann without any authorization made his personal
opinion prevail with a number of higher command authorities
in the East to the effect that jurisdiction should be maintained,
and all crimes committed against Russian cilivians should be
prosecuted in the same way as in other theaters of war. In
reality this part of the Jurisdiction Order did not come into effect
at all. Crimes of German soldiers against Russian civilians were
persecuted in the same way as in other occupied countries. Num-
erous testimonies of commanders and judges from different parts
of the front and from different periods prove this state of facts.

As to the legal qualification of the obligation to prosecute, I may

385

point out the fact that also in Allied countries no obligation
to prosecute criminal actions exists on principle, but that prose-
cution is left to the discretion of the competent authorities.
Numerous Germans, especially women, experienced this after the
end of hostilities.

Summarizing the part of my client in the jurisdiction order,
the essential points in my opinion are the following:

From the beginning he strongly opposed Hitler’s idea, as well
as the commanders and the other jurists dealing with it. He made
his objections unequivocally clear and went so far as to put his
office at Keitel’s disposal. He could not do more than make
suggestions, and this only as far as jurisdiction was concerned.
If these suggestions were rejected, he had no further possibilities.

At any rate he achieved important and partly even decisive
restrictions of the original Hitler order, and this was a result
which he could advocate from the point of view of international
law.

In addition to the “Barbarossa Jurisdiction Order”, the prose-
cution wants to bring my client in connection with the Commissar
Order. The prosecution states that this order had been drafted
and distributed with the assistance of Lehmann. At another
passage — that Lehmann agreed to the draft. Both statements
are incorrect. The evidence proved the following: Lehmann had
learned of Hitler’s intention that the Russian Commissars should
not be recognized as prisoners, but should be killed. On the
occasion of the already mentioned discussion at Berchtesgaden in
April 1941 to which Lehmann had been ordered because of the
Jurisdiction Order, he tried to submit to Keitel his objections
against the intended treatment of the Commissars. But he met
with a rough rebuke. Keitel told him that he, Lehmann, should
not bother with this matter, that it did not concern the legal
department. Lehmann informed the chiefs of the legal depart-
ments of the branches of the Wehrmacht about his answer, the
same gentlemen with whom he discussed the Jurisdiction Order
some days later. He talked to General Mueller of the OKH about
this matter; shortly afterwards the Wehrmacht Operations Staff
sent him a draft for this Commissar Order together with a draft
concerning the Jurisdiction Order. These two drafts came from
the OKH and had been sent to the Wehrmacht Operations Staff
with a covering letter dated 6 May 1941. Lehmann returned the
draft for the Commissar Order without giving his own opinion
on it; he confined himself to propose another and clearer couch-
ing of the last paragraph of the draft, according to which the
courts martial and the drumhead courts martial had nothing
to do with the execution of this order. At the same time he

386

phoned the deputy chief of the Wehrmachtfuehrungstab [Warli-
mont] and informed him of the answer which he had received
from Keitel and that therefore he could not deal with the real
contents of the order.

This telephone call has been mentioned in the prosecution
document itself. General Warlimont confirmed its contents.

Dr. Lehmann therefore did not participate in the drafting of
this order. He did not express his opinion about its contents.
After the rebuff by Keitel he had no possibility to do so. He had
nothing to do with the distribution either.

It is remarkable that the Chief of the Legal Department of the
Army High Command, Generalstabrichter Neumann, who was in-
terrogated here as a witness of the prosecution, received from
his Commander in Chief, Field Marshal von Brauchitsch, the same
answer to his objection against the Commissar Order as Lehmann
received from Keitel.

As to the Commando Order of 18 October 1942, the prosecution
states that Lehmann had prepared and drafted this order. But
no proof could be produced for this statement.

As to the preparation it must be pointed out that this matter
did not belong to the sphere of tasks of the Legal Department of
the Wehrmacht, since it had no connection whatsoever with the
Wehrmacht jurisdiction. The Legal Department was only one of
the offices which in the very first stage had been asked for its
opinion by the Wehrmacht Operations Staff. But the documents
show that it had no opportunity for a final opinion because of
Hitler’s and Jodi’s immediate intervention.

For the first formulation of the drafts — and only in this first
formulation did an expert of the Legal Department participate —
the experts of the Legal Department and of the Wehrmacht Opera-
tions Staff had only Hitler’s radio speech of 7 October 1942 at
their disposal concerning the treatment of the terror and sabotage
groups, “who did not act like soldiers, but like bandits”.

The two experts started from the assumption that these meas-
ures concerned francs-tireurs. The draft which the expert of the
Legal Department passed on to the Wehrmacht Operations Staff
on the telephone included an important restriction, according
to which the order applied only to such members of terror and
sabotage groups “who are proved to have disregarded the rules
of honorable combat”.

When submitting this formulation a reservation was made that
only such facts had been taken into consideration as could be
seen from the newspapers.

In the further course of this matter, Dr. Lehmann repeatedly
and urgently asked for a general discussion calling in also the

387

Chief of Office Foreign Counterintelligence, Admiral Canaris, and
this “for clearing up preliminary questions * * * only after then
could the troops be given instructions as to what sabotage troops
could be considered as bandits.” As Dr. Lehmann was aware
of the fact that reference to legal reasons would be unsuccessful
with Hitler, he — when he requested a general discussion — empha-
sized practical viewpoints, such as possible repercussions on their
own [German] methods of warfare.

As the documents show, Lehmann’s intention was to reach by
way of this discussion an order, unobjectionable under interna-
tional law which would be suitable for dissemination. But the
demanded discussion did not take place, instead of it some days
later the final order, signed by Hitler himself, arrived. This
final order does not contain any clue to the effect that the activity
of the Legal Department of the Wehrmacht had been of any, not
even direct, influence on the formulation as issued by Hitler
himself. The prosecution documents do not show that the ideas
which Dr. Lehmann had submitted to the operations staff and
to the Office Foreign Counterintelligence for discussion had come
to Hitler’s knowledge. In my closing brief I shall come back
to the distortion of facts in the final plea for the prosecution.
Dr. Lehmann did not participate in the distribution and execution
of the Commando Order.

If I am now to deal with the “Night and Fog” Decree, first of
all I must draw the attention of Your Honors to the historical
development which induced Hitler to oppose new measures to the
ever increasing underground movements in the occupied western
zones. As to the extent of the French and Belgian resistance and
the degree of their danger I can refer to the files sent over from
Washington. They furnish valuable proof and — although being
only fractions of the entire material — convey an impression of
the systematic espionage and sabotage of the underground move-
ments against the occupational power. ( Lehmann document

book 5.) Several affidavits and the testimony of the witness
Boetticher complete these documents. We are here concerned
with a method of fighting which occupational powers in a quiet
country like Germany cannot imagine. Nobody will pretend that
the underground movements were legal. Even the French prose-
cutor with the IMT, M. Dubost, admitted the illegality with the
following words :

“We do not contest that in many cases they may have been

francs-tireurs, and we admit that they could be sentenced

to death.”

388

I must emphasize here that a consideration of the “Night and
Fog” Decree, must clearly distinguish between the decree issued
by the Wehrmacht and the quite independent measures taken by
the police, circumventing the Wehrmacht, in the occupied coun-
tries on its own initiative. Frequently the police used the words
“Night and Fog” in arrestations and transfers carried out on their
own initiatives. These arrests of the police not covered by the
NF [Night and Fog] Decree of the Wehrmacht, but caused by
instructions of Himmler, formed the emotional perhaps also propa-
gandists basis for the evaluation of the NF Decree. By reason
of documents and distinct testimony the defense in this trial
succeeded for the first time in clearing up the difference between
the NF of the police and the NF of the Wehrmacht, or, as it is
mentioned in one of the prosecution documents, between the new
NF and the old NF. These are two entirely different matters.

As to the NF Decree of the Wehrmacht, in the course of the
evidence it has been proved, and it has not been contested by
the prosecution, that Hitler himself gave the order to work out
such a decree and that this order was passed on to the OKW
offices concerned via Keitel. This Hitler order contained already
the essential points of the final decree, namely: exclusion of the
Wehrmacht courts in those cases in which a death punishment
was not to be expected, removal of arrested persons to Germany
and secrecy about their later fate. Thus, the order as such was
already an established fact, and the defendant Lehmann took
no part at all in this original Hitler order.

The defendant Lehmann together with the Office Foreign Coun-
terintelligence, an office praised by the prosecution in another
context, took part in the final couching of the Night and Fog
Decree, as it can be seen from the prosecution documents. Be-
cause of Lehmann’s intervention this final text differs essentially
from the original Hitler order. It is to be examined therefore
whether or not the final NF decree with its implementation regu-
lations and the supplementing provisions which were issued later
corresponded to international law. For this purpose it seems to
be necessary to subdivide the complex into particular questions
and to analyze them separately. The defense see themselves in
a difficult position in as far as the prosecution neither in their
final plea nor otherwise made clear as to what provisions of the
NF Decree they consider criminal. International law was fre-
quently mentioned in this trial. It may be attributed to the
kind of this trial that nobody made the attempt to examine precise
questions on the basis of international law and the practice of
states. But I deem it important to point out the fact that inter-
national law is not a question of feelings, but — as it is suggested

389

by its name — a question of law. Although these questions cannot
be answered in precisely the same way as a problem of mathe-
matics, the legal argumentation should not rely on vague concep-
tions and personal wishes. The solution of such questions can only
be found by means of codified law and if this is insufficient,
through the recognized practice of states.

The questions which the night and fog complex — quite apart
from Lehmann's participation in particular — raises in legal re-
spect are the following:

1. Is an occupational power authorized to pronounce death sen-
tence in cases as listed in paragraph 1 of the first and second
implementation regulation to the NF Decree?

2. Is an occupational power authorized to have inhabitants
of occupied countries who have been found guilty of criminal
actions against the occupational power tried by civil courts ?

3. Is an occupational power authorized to have inhabitants
of occupied countries who have been found guilty of criminal
actions against the occupational power tried by special courts?

4. Is an occupational power authorized to have inhabitants
of occupied countries who have been found guilty of criminal
actions against the occupational power tried in its own country
or is it authorized to perform such trials only in the occupied
country?

5. Is an occupational power authorized to arrest and isolate
from the external world such inhabitants of occupied countries
who are suspected of having committed criminal offenses against
the occupying power?

6. Are the secrecy provisions of the NF Decree such an impedi-
ment for the defense of the defendant, especially with regard
to the presentation of evidence, that they represent an unneces-
sary hardship, that is a hardship which affects the interests of
the defendant to a greater extent than it is justified by the aims
of the occupational power?

7. Is an occupational power authorized to isolate from the
external world such inhabitants of an occupied country who
form a danger for the safety of the occupying power, even if a
court has acquitted them from a special charge or — in cases
that they were sentenced to a certain punishment — served this
sentence?

8. Is an occupying power authorized to have persons who
are suspected of having committed criminal offenses against the
occupational power or who constitute a danger for the safety of
the occupational power handed over not to the courts, but to
the police for detention?

390

9. Is an occupational power authorized under certain circum-
stances to order intimidating measures which are directed not
only against the delinquent or dangerous persons, but also against
the members of their families and the population as such?

10. Constitute the measures of the NF Decree ordering the
isolation of suspected persons or convicts from the external
world an unnecessary hardship, is that a hardship affecting the
interests of the family members and of the inhabitants to an
unreasonable degree composed with the aims of the occupational
power?

I regret very much that in view of the time granted to me I
cannot deal in more detail with these problems.

But as an example I will discuss a question to which the prose-
cution apparently has attributed special significance; as to the
facts I shall make some additional remarks in my closing brief.
It is the question whether or not an occupational power is author-
ized to have inhabitants of occupied countries tried by special
courts. This question is to be answered in the affirmative, if the
legislatioh and the practice of the Allies are considered as legal.
For the Nuernberg courts established by virtue of the Control
Council Law No. 10 are special courts, established not only for
special crimes ; but — in a more restricted way — for special trials.
The appointment of three judges corresponds to that of German
special courts, their procedure is not adapted to the law of the
occupied country, appeal against their judgments is not possible,
just like in the trials before the German special courts.

From my closing brief I may anticipate that an examination
of the Night and Fog Decree based on the codified international
law, as well as on the practice of the states, leads to the result
that the decree is not contrary to international law. As to the
legal aspects of my argumentation, the prosecution maintains the
following against the defense arguments referring to the practice
of the Allies, stating firstly: If the Allies did wrong, this does
not lessen the guilt of the defendants. That is true in the main.
I therefore refrain from extending my evidence to such particu-
lars which in my opinion seem to be criminal from the point of
view of international law. I leave it to the prosecution to examine
such events on the basis of the penal law and I will do it with
the same ardor with which they prosecuted the alleged crimes
committed by Germans. But I rely on the general orders issued
by the Allies, since, unless the contrary will be proved, I must
consider them as unobjectionable in a legal respect. As to these
general orders the prosecution refers to a second argument: It
states that the present measures of the Allies cannot be compared
with the former German measures. It bases this opinion on the

391

German capitulation, on the fact that no armies are operating
any longer, and that a German Government does not exist. There-
fore the occupational power, so concludes the prosecution, is no
longer bound by the restrictions of the Hague Convention. I
shall deal briefly with this argument.

1. According to the clear wording of the capitulation document
the German Wehrmacht capitulated and not the German Reich.
A neutral court, the Supreme Court of the Swiss Canton Zuerich,
stated in a judgment in December 1945, that Germany continues
to exist as a subject of international law and that it can be
partner of international agreements.

2. No provision of the Hague Rules for Land Warfare Order
confines its own validity to that effect that it applies only to
states with an army or a free government. On the contrary,
the sense of the Hague Order shows that it intends to support
the feeble partner, and that the guarantees entered in its pro-
visions represent the minimum of what is under all circum-
stances to be reserved for the defeated partner in his relation
to the occupational power.

The argumentation of the prosecution would lead to the
grotesque result that a victorious state would have to abolish in
the first place the army and the government of a defeated enemy
in order to get rid -of all the binding provisions of the Hague
Rules for Land Warfare. It would be left to the discretion of the
victorious power in full command of its superiority to abolish
all remaining guarantees of the defeated and to create in this way
a state of uncontrollable arbitrary power and to maintain this
state at its pleasure. Such an argumentation is either based on a
fallacy or on considerations of political expediency which have
nothing to do with legal standards.

I therefore arrive at the result that the present measures of
the Allies must be based on laws of humanity as well as on the
provisions and customs of the Hague Rules for Land Warfare
and that consequently these measures must be considered as mani-
festations of a state practice important from the point of view
of international law, and that they can be compared with the
former German measures. The prosecution tries to construe a
factual contradiction in the statements of the defendant Lehmann
by asserting that it is impossible to say: This or that measure
is unobjectionable in legal respect, but I fought it or I was en-
deavoring to mitigate it.

In this way of argumentation the prosecution wants to prove
that the defendant was quite aware of the unlawfulness of his
actions. But such argumentation seems somewhat too primitive
to me. If somebody opposes a measure in any recognizable way,

392

this does not mean at all that he considers this measure unlawful
or even criminal, even then, if a jurist is involved or matters are
concerned which are of a legal character. There are thousands of
reasons to oppose a certain intention; they can be in the field
of expediency; it may be that the person concerned does not
consider it suitable or adequate; but also reasons of a pure
humane character may play a part. It is just the chief prose-
cutor in this case who will certainly still remember the criticism
voiced by Judge Wennerstrum among other things also against
the prosecution after the end of the first trial against German
generals. I do not believe that the prosecution would interpret
the disapproving attitude of Judge Wennerstrum to that effect
that his criticism might include a legal qualification of his own
activity or of the activity of the prosecution. The innermost
refusal of a thing in which somebody is participating means,
therefore, that something better is wished for, but it does not
mean that the action as such is considered illegal or even criminal.

For these reasons I included in my document books a number
of documents containing a moral judgment on Allied measures,
e.g., of the automatic arrest. Among these documents there are
declarations of high ecclesiastical dignitaries of both denomina-
tions whom I should like to consider as experts in the field of
public morality. I did not introduce these declarations in order
to prove these measures illegal, but in order to show that moral
judgment and political expediency can widely differ. Now some-
body may perhaps make the primitive demand : If a man recog-
nizes that his government asks for his cooperation in a form
which he wants to refuse on ethical or other nonlegal considera-
tions, then he should refuse any cooperation at all.

Whoever has lived under a tyranny is quite aware that for
a man who is opposed to the totalitarian power of state there are
three possibilities —

He opposes in an open manner. This would seal his fate
before he could attain the slightest success. His sacrifice would
be futile.

Or the second possibility, he abandons his activity if he can,
withdraws to another sphere of activity, and leaves the matters
entrusted to him to the zeal of unscrupulous men in power. In
this case he would have saved his life, but would have failed his
duty.

And the last, the third possibility, he remains in his office
and endeavors to preserve what can be preserved. This way
is not very easy. It is not without danger. It requires as much
courage as prudence and a high degree of self-denial.

General Taylor stated in his closing statement that neither the

393

prosecution nor the Tribunal are obliged to tell the defendants
which way they should have gone. This statement reveals the
shocking fact that in spite of the fact that they have been busy
with German problems for three years, the prosecution did not
yet enter into the main problem of the Nuernberg Trials, the
problem of conflict of duties. The superficiality of the indictment
may be admissible in consideration of the historical and political
background, but it is impossible in an evaluation of facts from
the point of view of penal law. Nobody can be punished if, in case
of a conflict of duties he chose that way which, weighing seriously
all interests concerned, he considered the most just. In this case
he is not criminally guilty. But the prosecution must prove this
guilt, and the question cannot be solved by ignoring it.

In the so-called Justice Case judgment, State Secretary Schlegel-
berger was charged with not having prevented the judge’s gown
from being defiled. Dr. Lehmann succeeded in averting this
danger from the armed forces administration of justice. He had
no power to prevent Hitler’s more far reaching plans. Nobody
will deny that in such a position the preservation of the judiciary
may justify even the abandonment of other interests. I may be
allowed to mention an authority whose moral integrity and his-
torical greatness are generally recognized. Abraham Lincoln
wrote in August 1862, during the Civil War* :

“My paramount object in this struggle is to save the Union.
* * * If I could save the Union without freeing any slave, I
would do it; and if I could save it by freeing all the slaves,
I would do it, and if I could save it by freeing some and leaving
others alone, I would also do that. What I do about slavery
and the colored race, I do, because I believe it helps to save
the Union”.

In this connection the question necessarily arises as to the
rights and duties of the defendant Lehmann as head of the
Legal Department of the Wehrmacht and as to his sphere of tasks ;
for these establish his responsibility. The Chief WR (Wehr-
macht Legal Department) was subordinated to the Chief OKW,
Field Marshal Keitel. He was an administrative official with
military obligation of obedience. Since summer 1944, he was a
general with special assignment (Truppensonderdienst), with the
same military obligation of obedience which Keitel pointed to on
certain occasions in an unmistakable manner. The connections
with Keitel concerned exclusively the field of military criminal
jurisdiction. Other subject matters, especially questions of mili-
tary leadership, were not dealt with, because the defendant

* Extract from letter to Horace Greeley, 22 August 1862.

394

the

Lehmann did not learn of them by reason of the secrecy pro-
visions. When an exceptional case occurred, and therefore a
reason to discuss such problems, he was expressly relegated to
his own restricted competence.

The prosecution compares the position of Lehmann with that
of the American Judge Advocate General. I am not able to
verify if such a comparison is tenable. But it seems to me
that the following comparisons prove its incorrectness: The
American Rules of Land Warfare, the Basic Field Manual of
the American Army were compiled under the directions of The
Judge Advocate General. The German Wartime Manual for the
General Staff ( NOKW-1878 , Pros. Ex. 42) with its regulations
of international law had been kept secret from the Chief of the
Legal Department during the whole war ; he saw it in this trial for
the first time. In other orders, too, which were important in
legal respects such as “Service Instructions for the Units of the
Wartime Field Army,” with regulations as to conduct in enemy
countries, hostages, and so on ( Lehmann 202, Lehmann Defense
Ex. 74), WR did not participate.

Dr. Lehmann was not the highest judge of the Wehrmacht.
He was not a judge in the proper sense. The administration
of justice of the Wehrmacht — although this sounds very strange —
was not subordinated to him, but to the particular branches of
the Wehrmacht. Lehmann had no command authority towards
the legal departments of the three branches of the Wehrmacht.
He could not issue any order to the troops. There is no single
order which Lehmann signed and which exceeded the sphere of
his department. Where his signature can be seen, we are always
concerned with proposals, communications, opinions, informations,
and so on.

The main activity of WR was in the field of penal law. But as
the responsibility for a correct execution of the penal jurisdiction
was with the branches of the Wehrmacht, the task of the Legal
Department of the OKW was limited to coordinating the juris-
diction of army, air force, and navy by way of negotiations. The
defendant Lehmann had no right to command. He could only
make suggestions and requests. In this field which was his proper
and most extensive sphere of activity, no reproach could be made
against Lehmann. Here the prosecution does not attack. Where
the prosecution attacks — and this is the shocking point in this
trial — it is in a field where Lehmann had nothing to suggest,
but only to obey and to carry out. And this field of activity was
the work on decrees concerning the military penal law. There
could be two sources of such decrees: They could be suggested
by the Wehrmacht branches, then discussed in joint sessions, and

893964— 61 27

895

submitted to Field Marshal Keitel for his decision, or — the sec-
ond possibility — they were already orders coming from Hitler or
Keitel. The contents of these orders were fixed, in frequent cases
also the formulations. Practically speaking, these orders were
already issued, before they were sent to the Legal Department of
the Wehrmacht. WR, the other departments, and the commanders
in chief had to resign themselves to them, and it would be an
error to assume that an officer in the OKW had to obey less than
a soldier at the front. To what an extent Dr. Lehmann, also in
these nearly hopeless cases, fought to mitigate hardships and to
create expedients in order to achieve results based on the law
was one of the main points of this trial.

In these remarks a parallel emerges, the parallel to the chief
of staff. But here some differences are remarkable. The com-
petence and the rights of the chief of staff were much more ex-
tensive than those of the Chief of the Legal Department. Chief
WR, for instance, was not the first advisor of the Chief OKW.
to deputize for the Chief of the OKW as it was usual for the chief
of a staff in case of temporary absence of his superior was out of
consideration. Informations which the chief of staff could ask
for were not given to the Chief WR. Apart from special cases,
the defendant saw his superior only rarely, once a month. In
all other cases official matters were submitted to him in writing.
Dr. Lehmann’s office was in Berlin, Hitler and Keitel were in the
Fuehrer Headquarters. During the whole war the defendant
Lehmann did not talk once to his supreme Gerichtsherr.

Such things are not formalities; they are based on questions
of organization for which Lehmann was not responsible; they
prove furthermore the deplorable contempt for jurisprudence and
jurisdiction in the Third Reich. Hitler, Himmler, and Keitel
made their basic decisions without consulting a jurist. The
defendant to whom the decrees concerning his field of activity
necessarily were sent had only to fix the wording and to pass them
on ; he had no right and no authority to issue or to prevent such
decrees on his own initiative, even if he wished to do so.

In this connection I may remind you that Military Tribunal V
acquitted two defendants in Case No. 7 only for that reason that
the nature of their position gave them no command authority.
As to one of the defendants the Tribunal has stated, “that he
initialed or signed orders * * * which were unlawful when viewed
in the light of the applicable international law.”

And that it belonged to his duties to work out and to sign
such orders; as to the other defendant the Tribunal has stated,
“that he exercised this power and influence upon his various

31)6

commanders in chief in such a manner as to incriminate him-
self * * * ”

The decisive point for the acquittal of both defendants had
been that the defendants “lacked the authority to issue such an
order on their own initiative”.

In conclusion I quote from this judgment and from the
reasons concerning the defendant Foertsch (Case No. 7, Tr. p.
10498) ■

“The nature of the position of the defendant * * * his entire
want of command authority in the field, his attempts to procure
the rescission of certain unlawful orders and the mitigation of
others as well as the want of direct evidence placing responsi-
bility on him, leads us to conclude that the prosecution has
failed to make a case against the defendant. No overt act from
which a criminal intent could be inferred, has been estab-
lished.”

These statements are of decisive importance for the evaluation
of the responsibility and the competence of my client and their
application would lead to the same result. The prosecution has
failed to make a case against the defendant. If I endeavored to
clarify the actions and the responsibility of my client, if I
endeavored to prove that his actions were unobjectionable in legal
respect, I will not contest that recent years saw great crimes.
But it is the task of this honorable Tribunal to establish the
personal guilt or nonguilt of the defendants. I am quite aware of
the difficulty of this task. We are concerned with a tribunal of
victors over the vanquished, with laws and procedure which
victors created to apply to a defeated people. But this judgment
must not consider the question of victory and defeat, the trust
of humanity is at stake, the hope that sovereign judges, free from
generalizations, from feelings of revenge, and uninfluenced by
propaganda are able to distinguish between the actions of these
defendants and the demoniac character of the perished regime.

May your judgment be based on the understanding that stand-
ards of civil jurisprudence do not apply to revolutions and war,
for powers are at work, the source and the end of which are
unknown to us. Inescapable historical facts, however, determine
the framework and the standards in judging actions and omis-
sions of an individual.

Your Honors, may these ideas guide your considerations and
lead you to the conclusion that my client, during a time which was
stronger than himself, fought with a clean character, with his
best will and with all his might for the maintenance of justice.

397

Dilexit justitiam et odit iniquitatem. (He loved justice and
abhorred iniquity.)

I move that the defendant Lehmann be acquitted from all
the counts of the indictment.

F. Extracts from Closing Briefs of the Defense

I. EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT VON KUECHLER

*******

This defense of necessity or duress is closely related to the plea
of “superior orders”. I am glad to agree with the views of the
Tribunal as far as that is concerned, and take the liberty of quot-
ing extracts from the statements of the prosecution presented in
its closing brief in the Krupp Trial* on 24 June 1948:

“The reason that superior orders are sometimes given weight
in military cases, * * * is based upon two quite distinct ideas.
The first is that an army relies strongly, in its organization and
operation, on chain of command, discipline, and prompt obedi-
ence ; the soldier is in duty bound under ordinary circumstances,
and also under very extraordinary circumstances, to carry out
his commander’s orders immediately and unquestioningly. The
second reason is that the soldier stands in fear of prompt and
summary punishment if he fails to carry out orders, or obstructs
their prompt execution by over-much questioning.” (Case No.
10, Tr. pp. 12496-12497.)

Unfortunately, so far the prosecution did not take the same view
in this case. On the contrary, in this trial where it indicts soldiers,
it would have none of these principles. It does not even know now
the U. S. Field Manual, published by the War Department, “Rules
of Land Warfare, Washington 1940 (FM 27-10)”, where it says
under paragraph 347 :

“Individuals of the armed forces will not be punished for these
offenses in case they are committed under the orders or sanction
of their government or commanders.”

Also the British Manual of Military Law declares in its Amend-
ment of January 1936, under paragraph 443 :

“It is important, however, to note that members of the armed
forces who commit such violations of the recognized rules of
warfare as are ordered by their government, or by their com-

* United States vs. Alfried Krupp, et al., Case No. 10, Vol. IX.

398

mander, are not war criminals and cannot therefore be pun-
ished by the enemy.”

In connection with these regulations, the authoritative work by
W. Winthrop, “Military Law”, second edition (1920), states that
as a rule it is not up to the subordinate to determine whether an
order issued to him is legal; in practice, this would destroy mili-
tary discipline.

In the fact that the prosecution overlooks these opinions, which
are obviously known to it (the prosecution), I see a further proof
for my opinion, already presented in my opening statement, i.e.,
that the prosecution presents the subject matter of the trial always
one-sidedly in the manner which seems most suitable to serve their
purposes. I leave the evaluation of such “chameleon tactics” to
the Tribunal.

Now it is rather a poor argumentation if the prosecution argues
that for all practical purposes any military penal code of the civi-
lized nations contains the rule that a soldier is not obliged to
comply with criminal designs of his superiors. In doing so, the
prosecution is overlooking reason and purpose of this provision.
The meaning of this rule surely is that the legislator himself, or
the holder of the supreme state authority, rises in defense of a
soldier if the latter believes he is unable to comply with an unlaw-
ful order of his superior. The presupposition of this is therefore
that the legal basis is unobjectionable, the individual order, how-
ever, is unlawful. In that case of refusal to obey an order, the
soldier receiving the order may thus refer in the face of his
superior to the protective law introduced by the prosecution, and
justify his refusal. This legal protection fails however, if the
head of the State himself issues an unlawful order, since in that
case, as the witness [Franz] von Roques rightly stated during
his interrogation of 30 July 1948 ( German Tr. p. 8662), no earthly
power exists which can protect the soldier who refused to comply
with the order.

*******

Measures constituting military necessities ( evacuation and

destruction)

I now turn to the events directly connected with the front line
fighting which have been introduced by the prosecution under
the headings “evacuation and destruction”. In paragraph 59 of
the indictment the prosecution attempts to represent these meas-
ures as part of a premeditated plan and program. Paragraph 68b
of the indictment reads literally:

“In the fall and winter of 1943 in the U. S. S. R., in territories
being evacuated by Army Group North commanded by Kuechler,

399

in order to force an evacuation or elimination of the population,
villages, houses, wells, mills, cellars, and furnaces were de-
stroyed; and all movable items including milling stones, tools,
carts, etc., were carried back or destroyed by the troops; result-
ing in innumerable civilian deaths and the destruction of a
tremendous amount of property/'

Before dealing in detail with the charges preferred by the prose-
cution I wish to comment on the legal aspect of the problem.

Legal Appraisal

The basis of a legal appraisal is the Articles of the Hague Con-
vention on Land Warfare. It lays down in Article 23 g —

“In addition to the prohibitions provided by special conven-
tions, it is especially forbidden —
*******

“g. To destroy or seize the enemy's property unless such de-
struction or seizure be imperatively demanded by the necessi-
ties of war.

“A belligerent is likewise forbidden to compel the nationals
of the hostile party to take part in the operations of war directed
against their own country even if they were in the belligerent's
service before the commencement of the war."

A destruction, then, is justified if and when a military necessity
exists. However, if military law justifies such destruction, then the
evacuation of the civilian population in the course of these justified
measures must be permissible as well, since the devastation of a
territory automatically gives rise to the question of evacuating the
population settled there.

Before dealing with the problems in detail, I wish to call the
attention of the Tribunal to a basic decision in this matter. I
refer to the judgment of Military Tribunal V in Case No. 7
against the defendant Rendulic who was charged with wanton
destruction of private and public property during the retreat in
the Finmark [Province of] Norway of the 20th Mountain Army
commanded by him. The judgment reads as follows ( Case No. 7 ,
Tr. pp. 10512-H) :*

“The evidence shows that the Russians had very excellent
troops in pursuit of the Germans. Two or three land routes
were open to them as well as landings by sea behind the German
lines. The defendant knew that ships were available to the Rus-
sians to make these landings and that the land routes were avail-

* United States vs. Wilhelm List et al., Vol. XI.

100

able to them. The information obtained concerning the inten-
tions of the Russians was limited. The extreme cold and the
short days made air reconnaissance almost impossible. It was
with this situation confronting him that he carried out the
‘scorched earth’ policy in the Norwegian province of Finmark
which provided the basis for this charge of indictment.

“The record shows that the Germans removed the population
from Finmark, at least all except those who evaded the measures
taken for their evacuation. The evidence does not indicate any
loss of life directly due to the evacuation. Villages were de-
stroyed. Isolated habitations met a similar fate. Bridges and
highways were blasted.

“Communication lines were destroyed. Port installations
were wrecked. A complete destruction of all housing, commu-
nication and transport facilities was had. This was not only
true along the coast and highways, but in the interior sections
as well. The destruction was as complete as an efficient army
could do it.”

*******

“The Hague Regulations prohibited 'The destruction or seiz-
ure of enemy property except in cases where this destruction
or seizure is urgently required by the necessities of war/ (Arti-
cle 23 g) . The Hague Regulations are mandatory provisions of
international law. The prohibitions therein contained control,
and are superior to military necessities of the most urgent
nature except where the Regulations themselves specifically pro-
vide the contrary. The destructions of public and private prop-
erty by retreating military forces which would give aid and
comfort to the enemy, may constitute a situation coming within
the exceptions contained in Article 23g. We are not called upon
to determine whether urgent military necessity for the devas-
tation and destruction in the province of Finmark actually
existed. We are concerned with the question whether the de-
fendant at the time of its occurrence acted within the limits of
honest judgment on the basis of the conditions prevailing at the
time. The course of a military operation by the enemy is loaded
with uncertainties, such as the numerical strength of the enemy,
the quality of his equipment, his fighting spirit, the efficiency
and daring of his commanders, and the uncertainty of his inten-
tions. These things when considered with his own military
situation provided the facts, or want thereof, which furnished
the basis for the defendant's decision to carry out the 'scorched
earth' policy in Finmark as a precautionary measure against
an attack by superior forces. It is our considered opinion

401

that the conditions as they appeared to the defendant at the
time, were sufficient upon which he could honestly conclude that
urgent military necessity warranted the decision made.

“This being true, the defendant may have erred in the exercise
of his judgment, but he was guilty of no criminal act. We find
the defendant not guilty on this portion of the charge.”

This decision of the Tribunal in Case No. 7 furnishes the legal
foundations on which to base the appraisal of Field Marshal von
Kuechler’s action in this respect.

The evacuation and the “scorched earth” policy is justified not
only if it is objectively proved to be a military necessity, but even
if it presented itself as such subjectively in the opinion of the
defendant “at the time of its occurrence on the basis of the con-
ditions prevailing at the time.”

Discussion of the various charges
*******

I now turn to the other prosecution documents which refer to
the time after 5 September 1943. They refer to measures on the
basis of Fuehrer Order No. 10 which provided the construction of
an Eastern Wall (Panther Line) behind the German lines, and a
withdrawal of the front to this line, as a military necessity.
*******

In order to prevent an enemy break through in the course of
such a large scale withdrawal to a position deep in the rear, it was
imperative at the beginning of such a retreating movement to
ensure that —

1. The defensibility of this position, i.e., its construction should
be as complete as possible.

2. The terrain between the previous and the new positions
should be so prepared as to thwart or at least to slow down every
break-through movement of the enemy.

The achievement of this aim presupposes the destruction in the
intervening terrain of everything which might help the movements
and the gaining of footholds by the pursuing enemy. This meant
the radical destruction of all communications (roads, railroads,
bridges) and the rendering uninhabitable of all settlements with
their vital installations. With the execution of these measures,
strategical necessity thus made it impossible for the resident
civilian population to remain here. They had to be evacuated.

It must, therefore, not be overlooked that in the course of such
withdrawals — as experience has shown — a large part of the
civilian population stampedes into the disengaging movement of
the troops, thus constituting a danger for its successful execution.

402

From this consideration there resulted another military necessity,
namely, to make carefully thought out preparations for the evacua-
tion of the civilian population and to carry it out according to
plan and under humane conditions.

* * * * * * *

In conclusion to this complex 1 want to make this clear. The
evacuation of the civilan population was militarily necessary and
thus justified for the following reasons :

1. Military law does not prohibit the evacuation of the civilian
population at the approach of the military opponent, if there is a
certainty that the latter would use the civilian population ruthlessly
against one’s own armed forces. In particular, the compulsory
recruitment of the population by the partisans demanded energetic
counter measures.

2. Furthermore, military law does not prohibit a belligerent
from making all preparations for his retreat, in order to secure
his own forces. Because of the particularly dangerous band con-
centrations between the front line and the Panther position, the
success of a retreat depended not least of all on the behavior of
the partisans, therefore, Field Marshal von Kuechler was obliged
and entitled to make the necessary preparations to meet this
danger.

3. Military law also does not prohibit the destruction, justified
by military necessity, of dwellings and material, as far as these
could be used by the enemy after his advance. A necessary sequel
of this destruction is the evacuation of the civilian population
affected by it, since the population would otherwise be homeless
and drawn into the retreat fighting.

4. Finally, military law excuses an unlawful action based on the
principle of self-defense. At that stage of the war it was not
a question of to be or not to be for the armies of the northern
flank of the eastern front, but a question of the existence of the
entire German front. In view of the then existing situation in
the northern front, both the destruction and the evacuation are
thus justified from the point of view of self-defense.

This was also the view of Military Tribunal V in Case No. 7,
United States vs. Wilhelm List et ah, in which the evacuation of
Finmark was not considered a crime, and Rendulic was acquitted
of this charge.

*******

* * * The p rosecu tion, by a complete distortion of the actual
causes, attempts to present the military necessity of the evacua-
tion as a mere means of procuring labor for the Reich. By this
it wants to establish a connection between the Sauckel program
and the miltary agencies of Army Group North.

403

The irork of the recruiting commissions and the economic agencies
*******

The recruiting commissions were not under the command of
Field Marshal von Kuechler, but carried out their recruiting action
on the basis of the Fuehrer decree which I submitted to the Tri-
bunal in Document von Kuechler 119, von Kuechler Defense Ex-
hibit 119. According to this, Hitler had appointed Sauckel as
Plenipotentiary General for Labor Allocation on 21 March 1942
and had authorized him to carry out the mobilization of required
labor on his own competency and responsibility. For this purpose
the Plenipotentiary General for Labor Allocation appointed re-
cruiting commissions, which were to recruit Russian labor also in
the area of operations on a voluntary basis. For the execution of
his task Sauckel was directly subordinate to Hitler and was author-
ized by him to give direct instructions also to the military
agencies. * * * Thus, Sauckel’s direct competency for the area of
operations contradicted the position of the commander in chief as
holder of executive power in the traditional sense. Through
Hitler’s order and Sauckel’s direct competency for the problem of
labor allocation also in the area of operations, as well as the right
to issue factual instructions also to military agencies, the alleged
holder of executive power, namely the commander in chief, was
intentionally robbed of part of the full power in the occupied
territory by the supreme state power. This part Hitler reserved
for himself and had it carried out by a Plenipotentiary General
for Labor Allocation, Sauckel, appointed particularly for this
purpose.

*******

The organization of these economic agencies in the area of
operations was arranged as follows :

Hitler also intentionally limited the power delegated to the com-
manders in chief by transferring this part of the power over the
occupied territory directly and on his own competency to a special
plenipotentiary directly subordinate to him. In this case it was
Goering whom Hitler appointed as plenipotentiary for all economic
questions in the newly Occupied Eastern Territories and whom he
authorized in this capacity to issue direct instructions also to
agencies of the armed forces {Document von Kuechler 60, von
Kuechler Defense Exhibit 60). (Hitler decree of 29 June 1941
concerning the economy in the newly Occupied Eastern Territories) .
This shows convincingly that the commander in chief was no
longer the holder of the supreme state power for these questions,
but that they were withdrawn from his competency. It is a com-
plete misunderstanding of the facts, when the prosecution, in spite

404

of innumerable documents and testimonies, maintains — even on the
last day of the presentation of evidence — its assertion that it was
different. The Hitler order, which appointed Goering, and under
him a specially created economic administration for the area of
operations, shows quite clearly that the “holder of the supreme
state power”, the “supreme holder of executive power”, or the “su-
preme judicial authority”, withdrew another important part of the
supreme state power; i.e., the economic department, from the
holders of the so-called executive power in the operational area —
the commanders in chief — by creating an economic organization
directly subordinate to him. Anyone who is familiar with the
conditions knows that such a measure corresponded to Hitler's
deeply rooted distrust of the military and his contempt for their
economic and political abilities. It was Hitler's intention to regain
the economic leadership under all circumstances in order, after
the previous bad experiences, with the Quartiermeister machine of
the armed forces under the commanders in chief, to exclude the
latter. For this purpose Goering created the economic organiza-
tion for the newly Occupied Eastern Territories and with it the
economic commands and economic inspectorates which carried
out his instructions in the area of the army group. * * * It emerges
that the economic organization had its own competency, had at
its disposal its own official channels, and did not receive its factual
instructions and orders from Field Marshal von Kuechler. The
economic inspectorate and the economic leader were subordinate
to the Economic Staff East, and the latter to the Economic Con-
trol Staff, and in the next higher authority to Goering. In prac-
tice, this completely separated the economy in the area of opera-
tions from the military command agencies. Thus, they were co-
ordinated and not subordinated agencies.

The prosecution does not want to accept this fact. Even in the
rebuttal it still asserts that the economic organization was sub-
ordinate to the Commander in Chief “in every respect” ; with that,
it knowingly contradicts the contents of the documents. When the
documents mention a subordination to the commander in chief of
the army groups, it always means only a territorial subordination
and not a subordination in “every respect”. This has been shown
by the evidence. Prosecution Exhibit 48, [Document NOKW-
1501], does not contradict this either; it only shows that a con-
fusion of command in the area of the army group was to be
avoided by coordination and by the referral of the economic
organization to the area of its competence. The same emerges
from Prosecution Exhibit 435, [Document NOKW-2410], which
Field Marshal von Kuechler discussed in detail in his interrogation
(TV. pp. 2863—286J +) . This order also clearly differentiates be-

405

tween the competency of the economic organization and its task
which it had to carry out on its own responsibility. Thus, the
coordination and not the subordination of this economic organi-
zation in the area of command of Field Marshal von Kuechler is
clearly proved by all the documents. If the economic organization
had actually been subordinate to the commander in chief, then
neither the appointment of Goering, nor the establishment of a
special organization, nor the express order, that it was directly
subordinate to Goering, nor special departmental official channels
or a separate departmental responsibility would have been neces-
sary. Thus, the prosecution was unable to prove that the economic
organizations were subject to operational instructions from Field
Marshal von Kuechler.

* * * * * * *

2. EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT HOTH

* * * * 5fC * *

Control Council Law No. 10 provides in its Article II 4(6) :

'The fact that any person acted pursuant to the order of his
Government or of a superior does not free him from responsibil-
ity for a crime, but may be considered in mitigation.”

Now the question is whether one is able to bring the Commissar
Order under this provision at all. This necessitates a study of the
constitutional conditions in the Third Reich. A division of power
in the sense of Montesquieu no longer existed. Hitler was simul-
taneously supreme legislative authority, supreme judicial author-
ity and highest executive authority. So-called “Fuehrer orders” and
to these belonged the “Directives concerning political functionaries
(Commissars)” issued by the High Command of the Armed
Forces, frequently corresponded in countries without a dictator to
the decision of a government of many people, or even to a law
passed by parliament with hundreds of representatives. The institu-
tion of the “Fuehrer” as triple and exclusive supreme authority in
the German Reich, was known abroad. Treaties were made with
the Reich thus constitutionally formed, and therefore this form of
dictatorship was recognized insofar as this matters at all. Posi-
tive doubts on account of this form were not voiced at that time,
on the contrary : The smooth functioning of the machinery of state
in contrast to the slow lumbering apparatus of the democracies
was often lauded by foreign statesmen in the initial period of
the Third Reich. If on the other hand, the Commissar Order had
been passed as a formal law by a parliament, then the recipient of
this order would also have had to carry out this order, even if it

406

ask had contained an offense against international law. But one can-
the not punish the subordinate who carries out an order, and let the
mi- members of parliament go unpunished. But the form of the su-
‘is preme government leadership cannot cause the subordinate to
ion deviate from the principle that his relation to his government
leu leadership, and to it alone, is one of superiority and subordination,
[ a but never to any super-state creations which are — at least at present

tly — not yet in existence. It is a generally accepted doctrine in inter-

national law that for the individual national law breaks inter-
es- national law. On the basis of the above considerations, the prose-
iic cution’s so frequently repeated reference to section 47 of the
German Military Penal Code does not apply either. Whoever car-
ries out an order issued by the “Fuehrer” as supreme authority
, of the entire Reich executive cannot be punished by the same
“Fuehrer” in his capacity as supreme judicial authority. Or objec-
tively expressed, whoever carries out an order by the Fuehrer
does not transgress the principle of the internal order of the
State, for the sake of which this very rule was drafted, having
* 1 entirely different cases in view.

For these reasons the provisions of Control Council Law No. 10
is cannot include so-called “orders” from Hitler at all. Otherwise
this provision would also be opposed by the principle “Nulla poena
' sine lege” ; for during the period under consideration, an appeal
ir to superior orders was generally recognized in international law.

ie For the details on this question I refer you to the arguments in

r Dr. Laternser’s final plea.

Over and above this I refer to the conception of necessity, which
was clearly established by Military Tribunal IV in Case No. 5
against Flick and others, and thereby to the question of what can-
s not be expected of a person [ Unzumutbarkeit] , which can claim
validity as a general principle of international law despite the pro-
vision of Control Council Law No. 10 mentioned above. For the
details I refer to the verdict itself. ( Case No. 5, Tr. 10995). I
likewise refer to the verdict of the Military Tribunal VI in Case
No. 6 against Krauch and others. There it is stated ( Case No.
t 6, Tr. p. 15787) :

“From a consideration of the IMT, Flick and Roechling judg-
ments, we deduce that an order of a superior officer or a law or
governmental decree will not justify the defense of necessity
unless, in its operation, it is of a character to deprive the one
to whom it is directed of a moral choice as to his course of
action. It follows that the defense of necessity is not available
where the party seeking to invoke it was, himself, responsible
for the existence or execution of such order or decree, or where

407

his participation went beyond the requirements thereof, or was

the result of his own initiative/'

None of these prerequisites were present in the case of General
Hoth. That a condition of necessity and a question of how much
a person can be expected to do existed for him in the transmission
of this order, can easily be seen from the situation which existed
at that time. He knew that the order came from Hitler personally,
and he knew that open opposition to such an order would have had
very serious consequences for him. It was also clear to him
that nontransmission of this order signified rebellion against the
Supreme Commander of the Armed Forces himself, whom he knew
placed particular value on the execution of the order. Therefore,
the only thing left for General Hoth to do was to dilute the order
to the point where he considered it acceptable for application in
individual cases. This, in turn, could not be done in writing,
since he had to assume that the consequences would be the same
as in the case of nontransmission. Therefore, the only possibility
was to inform the subordinated commanding generals orally about
the intentions of diluting the order.

* * * * * * *

3. EXTRACTS FROM THE CLOSING BRIEF FOR
DEFENDANT REINHARDT

*******

I shall now turn to the legal question as to whether or not the
employment of Russian prisoners of war, especially the employ-
ment for the construction of field fortifications in the rear area
outside the combat zone, can be objected to from the point of view
of international law.

I. According to the view held by the prosecution [indictment
of 28 November 1947, par. 50] the employment of prisoners
of war for labor is considered a war crime and crime against
humanity, if such work is involved as is expressly prohibited
according to the “Geneva Convention of 1929, concerning the
treatment of prisoners of war". The first vital question then is :
Was the Geneva Convention applicable at all in the relationship
between Germany and Russia? This question can be answered
only with a clear “no". For —

1. The Soviet Union has not ratified the “Geneva Convention
of 1929 concerning the treatment of prisoners of war".

2. From the very beginning of the last World War the Soviet
Union did not abide by the rules of the Geneva Convention.

3. The Soviet Union has not observed the rules of the “Geneva
Convention of 1929 concerning the improvement of the lot of the

408

wounded”, which she signed and ratified under the title of the
U. S. S. R.

4. In its verdict of 30 September 1946 the IMT has stated that
the “Geneva Convention concerning prisoners of war” was not
valid as far as Germany and Russia were concerned. 1

In the face of these incontestable facts, the document presented
in this connection by the prosecution in rebuttal loses any signifi-
cance. Here the 72d Infantry Division quotes a contrary opinion
given in an enemy information bulletin, the origin of which has
not even been ascertained. It might have been taken even from
a misleading source of enemy propaganda, which is likely in view
of the announcement in the enemy information bulletin. If, how-
ever, the Geneva Convention was not applicable, then the employ-
ment of the prisoners of war for labor was more or less permitted
in as far as it did not violate the most elementary human rights
of prisoners of war. It cannot be alleged that the construction
of fortifications outside the combat zone constituted a violation of
the most elementary human rights of the prisoners of war. This
did not involve the employment of prisoners of war in “war opera-
tions against their own country”, nor did this work expose the
prisoner to greater danger than any other work that prisoners of
war have to perform in war time. The idea will never occur to
anyone to consider the employment of prisoners of war for farm
labor in the Reich illegal, although these persons were exposed to
much greater danger in view of the enormous numbers of low
flying Allied planes which, in the course of their operations, used
to fire with all their weapons even on civilians who were peacefully
working in the fields.

II. But even assuming for a moment that the Geneva Conven-
tion is directly applicable in the judgment of the legality of such
an employment, one cannot arrive at any other conclusion. Ac-
cording to chapter 3, Article 31, of the Geneva Convention — 2 only

1 The excerpt from the IMT judgment of 30 September 1946, (Trial of the Major War

Criminals, op. cit. supra, vol. 1, p. 232) reads as follows: “On 15 September 1941 Admiral

Canaris protested against the regulations for the treatment of Soviet prisoners of war, * * *.
He then stated: * The Geneva Convention for the treatment of prisoners of war is not bind-

ing in the relationship between Germany and the U.S.S.R. Therefore only the principles of
general international law on the treatment of prisoners of war apply. Since the 18th century
these have gradually been established along the lines that war captivity is neither revenge
nor punishment, but solely protective custody, the only purpose of which is to prevent the
prisoners of war from further participation in the war. This principle was developed in
accordance with the view held by all armies that it is contrary to military tradition to kill
or injure helpless people * * *. The decrees for the treatment of Soviet prisoners of war
enclosed are based on a fundamentally different view point.’ This protest, which correctly
stated the legal position, was ignored.” [Emphasis supplied.]

2 Geneva Convention concerning the treatment of prisoners of war, dated 27 July 1929.

Article 31: “Labor furnished by prisoners of war shall have no direct relation with war

operations. It is especially prohibited to use prisoners for manufacturing and transporting
arms or munitions of any kind, or for transporting material intended for combatant units.”
*******

Article 32: “It is forbidden to use prisoners of war at unhealthful or dangerous work.”

409

the use of prisoners of war for the “production and transportation
of material designed for the fighting troops” is expressly pro-
hibited.

Article 32 prohibits the use of prisoners of war for “unbear-
able or dangerous work.” The construction of field fortifications
outside of the combat zone is not included in this article on the
list of expressly prohibited work.

I have endeavored to come to a clear interpretation of this pro-
vision. In doing so I found the minutes of the Second Commission
which at that time dealt with these questions in Geneva. Chap-
ter C of the “Files of the diplomatic conferences for the improve-
ment of the lot of the wounded and sick and for the treatment of
the prisoners of war, Geneva, 27 July 1929”, contains the “minutes
of the session of the Second Commission, Provisions for Pris-
oners of War.” Because of the great importance of the records,
the exact wording is stated below in the footnote.* *

* Extracts from the “Record on the Diplomatic Conference * * * regarding the Treatment
of Prisoners of War”, Minutes of the Meetings of the Second Commission, Geneva, 1-24 July
1929, pp. 479-80.

Colonel Verte<jano (Rumania) — “The Rumanian Delegation wishes to suggest that at the end
of the first paragraph it should be inserted: ‘As well as for the transport of material in-
tended for combat units’, and to add: ‘As well as to the work on trenches and fortifications’.

While in the first part it is stated that the work of prisoners of war is not to have ‘a direct
connection with the operations of war’, the Rumanian Delegation nevertheless submits that it
would be advisable to bring this out more precisely in the manner suggested.

* * * * * * *

Lieutenant Colonel de la Harpe (Switzerland), reporter — “We are faced with the Rumanian
proposition, the terms of which have already given cause to an extensive change of opinions.
We have abided faithfully by the principle that the regulations for prisoners of war consti-
tutes, if you permit me to say so, the minimum of the maximum and the maximum of the
minimum. It is very difficult to go into detail if one wishes to avoid new discussions on this
question of fortifications. It would be better not to talk of it. As far as trenches are con-
cerned this nevertheless strikes me as somewhat extraordinary, since the regulations provide
that the prisoners of war are not to work in the line of fire. Does one have in mind a
withdrawal ? Or perhaps there might be the case, for example of prisoners of war being
utilized for digging trenches in the line under fire? That is possible and personally I do not
dare to make a statement on that subject.”

*******

Colonel Vertejano (Rmnania) — “I uphold our proposal. Inasmuch as there is mention made
of munitions and armaments in connection with operations of war, I think it perfectly logical
and normal that one adds the words ‘fortifications’ and ‘trenches'. As a matter of fact, if
the regulations for prisoners of war are the expression of this experience gained in the war,
then such experience has demonstrated that prisoners have been utilized for building trenches
and fortifications. That is the reason why the Rumanian Delegation insists on the point
which it has just set forth.

*******

“The Rumanian Delegation makes all reservations as regards acceptance on the part of the
Rumanian Government of the first paragraph of Article 31, which refrains from stipulating
that the prisoners of war will not be used for work on trenches and fortifications.”
*******

Lieutenant Colonel de la Harpe (Svritzerland), reporter — “We have a first paragraph which
seems to allow for the necessary flexibility. Shall we now go into new details? We have
considered for example, men who work in forests who cut the trees which will be sent to the
front. Would you prevent prisoners of war from carrying out that work? I do not believe
so. One cannot prevent the detaining powers from sending men into forest to work, and
that is why I feel one should leave a certain flexibility. I understand the Rumanian propo-
sition very well, but I feel that one should not make a wording cumbersome which appears
to me sufficiently comprehensive, as it insists on the words, ‘no connection with the operations
of war’.

410

These records, to which I should particularly like once more to
call the Tribunal's attention, unambiguously show that the employ-
ment of prisoners of war for the construction of field fortifications
outside the combat zone is not prohibited by the Geneva Conven-
tion. During the deliberation of the problem a unanimous opinion
in the form of a prohibition could not be attained.

By a majority of votes it was agreed not to include in the
Geneva Convention a prohibition of the employment of prisoners
of war for the construction of field fortifications outside the com-
bat zone. How can one try, in view of this state of facts, to indict
a German general as a war criminal because he did not attain
during the war the conception of law which was maintained by
a minority, and which the prosecution tries to set up today, so to
speak in a dictatorial manner, as solely valid and solely justified?

How many German prisoners of war were employed in England
during the war for the construction of air fields from which later
on the bombers took off. Nobody would think of considering this
employment as being in direct connection with the operations of
war ( Geneva Agreement , Article 31). How then, can one do so
with respect to the employment of prisoners of war for the con-
struction of field fortifications if these field fortifications were
in many cases constructed 100 km. and more behind the combat
zone and many of them were not even used later on.

III. If one goes still further and assumes that the Geneva Con-
vention not only applied, but that it even had the meaning alleged
by the prosecution, and consequently also prohibited the employ-
ment of prisoners of war for the construction of field fortifications
outside the combat zone, the charge made against General Rein-
hardt is nevertheless still unfounded. For, in this case, the legal
principle on “tu quoque n must be applied, which has approximately
the following meaning :

“A state cannot blame another state for having violated the

law by an action which it commits itself."

Probably not a single German who participated in the fighting
against the Soviet Union will have the slightest doubt that the
Soviet Union employed her German prisoners of war to a much
larger extent for the construction of field fortifications, particularly
even for the construction of field fortifications within the combat
zone. I may in this connection be allowed to remind the Tribunal

“Mr. President, as this question was discussed at very great length in the subcommission,
it seems unnecessary to me to return the Rumanian proposition to the subcommission which
would come to a conclusion no different from the one at which we are arriving today.

“The only thing we can do is to vote.

“One will vote by remaining seated and by standing up. The Rumanian proposition is
rejected by 22 votes against 8. Article 31 is adopted with the amendment of the Swiss
Delegation.”

893964—51 28

411

of how General Reinhardt described on the witness stand so im-
pressively how he personally observed in the foremost front line,
through his field glasses, that on the other side the Russians
employed German prisoners of war in the foremost position,
within the range of our own fire, for the construction of field
fortifications. This personal observation was confirmed by
observations of others, by reports of numerous agents and by
interrogation of numerous German soldiers who had escaped from
captivity. (7V. p. 3384.)

If, then, this is a fact, this circumstance — even if the Geneva
Convention applies and its provisions are interpreted in a most
narrow, literal way — must benefit General Reinhardt. Especially
with regard to the legal principle of “tu quoque” the IMT made a
fundamental decision in the case of Admiral of the Fleet Doenitz
by recognizing the application of this principle as a legal excuse.*
The IMT indeed found that Admiral Doenitz had violated interna-
tional law on this point, but nevertheless it did not convict him
because of this violation, because the same breaches of interna-
tional law had been committed by the enemy.

The application of the same principle to the case of General
Reinhardt must result in his acquittal, even if the validity of the
Geneva Convention is affirmed and its interpretation by the prose-
cution is accepted as binding. For the Soviet Union not only com-
mitted the same violation, but went much further by employing
prisoners of war even within the range of enemy fire for the
construction of field fortifications.

* * * * * * *

At a time in which the Soviet Union is daily engaged in the
forceful deportation of German citizens — numerous cases of this
kind have attracted considerable notice also in the press of the
Western Powers — at a time in which the Soviet Union compels
German citizens to perform slave labor on a large scale in the true
meaning of the word beyond the borders of Germany, it is diffi-
cult, especially for a German, to keep faith in international law.
While all this happens 3 years after the termination of the war,
without any world power taking steps to bring these cases before
an international tribunal under the charge of war crimes, German
generals are being taken to account here for having compelled the
Russian civilian population to perform absolutely necessary work

* In the judgment of the IMT it is stated (Trial of the Major War Criminals , op. cit. supra,
vol. 1. p. 313):

"In view of all the facts proved and in particular of an order of the British Admiralty
announced on 8 May 1940, according to which all vessels should be sunk at night in the
Skagerrak, and the answers to interrogatories by Admiral Nimitz stating that unrestricted
submarine warfare was carried on in the Pacific Ocean by the United States from the first
day that nation entered the war, the sentence of Doenitz is not assessed on the ground of
his breaches of the international law of submarine warfare.” [Emphasis supplied.]

412

in the midst of the most critical emergency of the war — the popu-
lation of a country which in peacetime had already enacted a law
providing for compulsory labor.

Never will the conquered German nation accept this as justice
unless equal law is made the principle for all. The German people
can only look at these trials with the deepest bitterness, if, on the
other hand, it is so clearly demonstrated how differently the law
is applied as soon as acts committed by Germans are not in
question.

One should not tell against me that a criminal does not escape
punishment just because some other criminal has committed the
same crime for which he has not yet been punished.

It is certain, however, that the idea will occur to none to make
the other criminal the legislator, the prosecutor, and judge of the
defendant. In international law, however, it is supposed to be
“justice” for a nation which itself commits crimes against peace
and acts which are branded here as crimes against humanity,
to be permitted at the same time to set itself up legislator, prose-
cutor, and judge of the very same acts. For the Soviet Union
participated in the drafting of the rules which are valid here,
and this Tribunal is acting on the basis of an authorization which
was also given by the Soviet Union.

5k ❖

The fact that, in principle, the civilian population of an occupied
territory may be compelled by the occupying power not only to
make payment in kind but also to render services of any kind has
already been acknowledged in Article 52 of the Hague Regulations
for Land Warfare. That the rendering of services may be re-
quired from individual residents as well as from the communities
is expressly mentioned in the same passage. A limitation of this
compulsory service is prescribed by the Hague Regulations for
Land Warfare only to the extent that the services “must be in
proportion to the resources of the country”, and that the popula-
tion will not be subjected “to participate in war operations against
their own country”. Consequently, even according to the Hague
Regulations for Land Warfare, no fundamental objections could
be raised against the labor conscription of the population by the
commanders in chief of the army, not even in cases where this
conscription was effected by tasks imposed on the communities.
The only factor in doubt could be the extent or the kind of work
admissible for the employment of the population. In this connec-
tion I refer to the basic legal arguments propounded in regard to
this question by Professor Maurach in his legal expert opinion.* *

* Here, quotes from the expert opinion of Professor Maurach, contained in the brief, are
omitted. They are reproduced in Document General Defense 79, General Defense Exhibit 79,
reproduced in Section YII C2.

* * * * * * *

413

In conclusion 1 should like to stress a final argument. When so
many doubts are left concerning the validity of the Geneva Con-
vention and the interpretation of its provisions, when the supreme
authorities of the Reich stressed again and again during the war
that the Geneva Convention did not apply to Russia and that Ger-
many was not bound by it — how, then, can a personal guilt of Gen-
eral Reinhardt be inferred from the fact that he considered “right”
at that time what now, years later, is supposed to be considered
“wrong”. Finally, a Panzer general is not an international lawyer
who during the war would be in a position to make investigations
lasting several months, or to ask international lawyers for expert
legal opinions about the correctness of his conception of law and
whether it could also be maintained in face of the consequences
of a lost war.

During the First World War prisoners of war were employed
on both sides for trench digging. The Geneva Convention drew
from this the practical conclusion that trench digging outside the
combat zone should no longer be prohibited. In view of these
facts, how could it occur to soldiers during the Second World War
that the prosecutors of a victor state would consider this a war
crime after the termination of the Second World War! In a
modern war which implicates the nations as a whole, which entails
the total labor service of all nations participating in the war,
which affects an entire nation by the hunger blockade, which with
bombs or atom bombs erases whole towns or parts of countries
within a few hours or minutes, no employment can finally be
imagined which does not have a certain connection with military
operations.

* * * * * * *

4. EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT HOLLIDT

*******

The problem of a command by a superior, as expounded by the
prosecution, seems to me to be an example of how, within a few
years after the Control Council Law No. 10 was promulgated, a
development has taken place which shows that this regulation is
in contradiction to the needs and fundamental principles of mili-
tary life. If, on the other hand, this existing legal regulation is
not regarded as being the standard for the meting out of justice,
then this standard must no longer be applied. Instead of stating
my own views on the actual situation from the aspect of the funda-
mental importance of the problem of orders by superiors, and the
views held by the experts in the Anglo-American countries, I

414

would like to quote the opinion held by the British naval officer and
author, Mr. Grenfell, which was published in the British news-
paper “The Spectator” on 23 June 1948.

The Implications of Nuremberg

“As the international situation deteriorates and the accusa-
tion of aggression begins once more to be bandied about among
the nations, we can no longer, without cowardice, refuse to face
the implications of the judgment by the International Military
Tribunal in the Nuremberg trials. It was laid down by the
Tribunal that subordinates are not absolved by the plea of
superior orders from personal responsibility for the planning
and waging of aggressive war. To quote the Tribunal :

“ ‘Hitler could not have made aggressive war by himself.
He had to have the cooperation of statesmen, military leaders,
diplomats, and business men. When they, with the knowledge
of his aims, gave him their cooperation, they made themselves
parties to the plan he had initiated. They are not to be
deemed innocent because Hitler made use of them, if they
knew what they were doing.’

“This judgment, whatever it may be in law, plays havoc with
the British Constitution, a cardinal principle of which is the
subordination of the military to the civilian authority. The
Nuremberg judgment impugns that subordination. In future,
the chiefs of staff, on receiving orders from the Cabinet to pre-
pare plans for war against another country, will be able to say,
‘Oh, no ; we don’t like the look of these orders. They smack to
us of intended aggression’. Nor will the chiefs of staff them-
selves be master in their own house. Not only have the German
service chiefs been condemned for obeying their political leaders
the lesser service men are now on trial for obeying their senior
officers. As well as undermining the British Constitution, the
IMT has loosened the foundations of the naval discipline and the
army and air force acts.

“It is no way out of this difficulty to contend that British
staff officers will never be asked to plan aggressive war. Since
the IMT did not define aggressive war, it is left to the victors in
a war to interpret that phrase as they please, and were we to
lose a future war, there is little doubt that the inevitable coun-
ter parts of such basically defensive measures as the British
occupation of Iceland and the invasion of French North Africa
could be used to send hundreds of our staff officers to the scaf-
fold. How, then, can a staff officer tell if he is or is not planning
what may later be called aggressive war? The assurances of

415

his political superiors will avail him nothing if the war goes the
wrong way. In fact, so doubtful are the data on which he has
to decide, and so dire are the penalties for a mistaken guess, that
the only real safe course for a modern staff officer is to refuse
to do any planning at all.

“Would such a refusal command the respect and acquiescence
of the British Parliament and public. How could it, since a
refusal to plan involves grave danger to the national security?
Is it not inevitable that the British public, if presented with such
a situation, would very quickly decide that, whatever the Nurem-
berg Tribunals might have said, staff officers are paid to plan
as they are told, and will refuse at their peril? But, if this
is what is likely to happen, how can we, as honest men, justify
it to our consciences that German officers are in prison with
our knowledge and by our order for doing their duty in just
this way?’’

So much for the impressive statements of Mr. Grenfell,* who
lives at present in Campden House, Burley, near Ringwood, Eng-
land. His words clearly show how important it is to revise the
sentences pronounced to date, not only in Nuernberg, but in all
trials for war crimes. Numerous examples show that his views
are shared not only by soldiers and officers within and without
the Anglo-Saxon world, but also by others.

As far as the legal aspect is concerned, it should be pointed out
that the Control Council Law violates the principle of the prohibition
to establish a penal law afterwards, * * *. German law does not
accept the principle of mitigating circumstances which is all that
the Control Council concedes.

*******

5. EXTRACTS FROM THE CLOSING BRIEF FOR
DEFENDANT VON ROQUES

*******
1. The extent of the executive power in the Eastern Campaign

As I already stated in my opening statement, it has the
most serious consequences for my client as well as for all the other
defendants that the old term “executive power” as known to the
German armed forces and probably also to the armed forces of all
other countries was retained in the Russian territory, although it
is hardly appropriate to use this term of executive power in its
true meaning in this area.

* Captain Russel Grenfell appeared as a defense witness. Extracts from his testimony are
contained in Section VI D1 vol. X.

416

What executive power actually meant in the beginning and
what the prosecution wants to be understood by that term in this
case and with respect to the Russian territory has been clearly
shown by the documents submitted. Article 22 of the [German]
Army Manual No. 90, "Supply of the Field Army”, reads as
follows ( NOKW-2708 , Pros. Ex. Ul) :

"Within the area of operations the CinC of the [German]
Army and the CinC’s of the armies are given authority to exer-
cise the executive power.

"The executive power contains the exercise of all state author-
ity in the area of operations within the directives issued by the
Fuehrer without prejudice to the independence of the judges.

"Commanders invested with executive power for a part of the
area of operations of the German army shall be considered to
be on the same level as the commanders in chief of the armies.”

A supplementary specification pursuant to these provisions
exists in the "Service Regulations for Armed Forces Command-
ers”, issued by the OKW on 15 April 1941. ( NOKW-1U71 , Pros.

Ex. US.) In the enclosure, under the heading of "The relationship
of the armed forces commanders to the political plenipotentiaries”,
in section IV, paragraph 4, it states: "According to the Reich
Defense Law — not published — and according to Army Manual 90,
the executive power is the supreme power (summum imperium ) ,
which is limited only by the will of the Fuehrer”.

Therefore, the following must be stated : In its proper, original
meaning, the executive power is the supreme state power as a
whole. In the Third Reich, as a dictator state, the entire state
power was embodied exclusively in the person of Adolf Hitler. He
alone had claim to it and he alone was authorized to delegate it to
others, to the extent and to the circles of persons to whom he
wanted to delegate it. Therefore, it must be determined how
much of this supreme state power in the Russian area, this sum -
mum imperium , embodied in the person of Adolf Hitler, was
delegated to the Commander in Chief of the Germany Army, and
how much of it he in turn delegated to his subordinate command-
ers. Only if the evidence showed that Hitler actually delegated the
full executive power to the formal holders in the area of opera-
tions, could it be established that the latter had also to take the
full material and personal responsibility resulting from the full
rights. For only the person who can claim for himself the full
rights of a legal concept can also take the responsibility connected
with this legal concept. In this connection, however, the hearing
of evidence has shown beyond any doubt that there could never
be any question of a delegation of the full state power to the

417

holders of the executive power in the operational area in Russia. It
is true that according to the original provisions Hitler formally
delegated the executive power to the commanders in the opera-
tional area, but materially he only allowed them a small percentage
of the resulting rights according to the principle “divide et
impera”, in order not to let anyone become too powerful. For the
delegation of the actual executive power to a military commander
would have meant that in his area the latter would have held in
his hands the entire state power. Such a concentration of power
in a subordinate position, however, contradicts the spirit of any
dictatorship. Only the dictator himself is in possession of the full
power. His subordinates are merely to be his executive organs
for certain parts of areas.

The concept of executive power includes not only the right to
make laws, but also the police execution, the administration, the
carrying out of economic measures, and in the field of the adminis-
tration of justice, at least the right to pardon. All these factors
make up the supreme state power. Particularly these decisive
factors, however, were almost completely taken away from the
commanders in the East, or else they were restricted in the decisive
points. This, involuntarily, brings up the question of why, in view
of these circumstances, the Commander in Chief of the German
Army used the concept of executive power at all in the orders
and instructions he issued. I believe that this can only be ex-
plained by the struggles for power carried on between the indi-
vidual organizations behind the scenes in the Third Reich. The
armed forces, the Party, Himmler with his police organization,
Goering with his economic agencies, Sauckel in his capacity as
Plenipotentiary General for the Allocation of Labor — all these
forces strove for power and tried to create for themselves their
own spheres of power even in the rear parts of the operational
area. In the face of them the Armed Forces tried to remain the
master in its own home, and believed it could perhaps attain this
end by having the executive power delegated to it, at least as far
as outward appearances were concerned. Possibly, however, the
forces working in the background, i.e., Himmler, Goering, and
other Party groups, were interested in outwardly placing the
responsibility on the armed forces, in order to be able to follow
their own purposes incognito in the background. Be that as it
may, one thing has been established beyond any doubt — apart
from the empty form and the old name, almost nothing remained
of the concept of executive power.

418

2. Restrictions for the Commander of an army group rear area in
Russia by the authority of the army group to issue instructions

In order to explain more fully what I have just said, may I briefly
discuss the basic order of the OKH, dated 3 April 1941, ( von
Roques 2, von Roques Defense Ex, 5) which General von Roques
in his examination called the “Bible of the Army Group Rear
Area". With these special regulations for the supply, part C,
entitled “Regulations on military sovereignty rights, security, and
administration in the rear area and matters pertaining to prison-
ers of war”, for the first time in the history of the German armed
forces an army group rear area was created, and the executive
power delegated to the Commander of the army group rear area.
The contention of the prosecution that with Rebuttal Document 77,
( NOKW-3550 ) it presented a new definition of executive power
in the army group rear area, in face of the defense presentation,
is absurd. In the above-mentioned Army High Command Order
dated 3 April 1941, which I introduced, paragraph 13, reads as
follows :

“He (that is, the commander of the army group rear area)
exercises executive power in compliance with the directives of
the Commander in Chief of the army group, and is responsible
for the security and the exploitation of the country in his area.”

The definition presented in paragraph 10 of Rebuttal Document
77, reads as follows:

The Commander of the Army Group Rear Area 103 exercises
executive power in the army group rear area in compliance with
the directives of the Commander in Chief of the Army Group,
and is responsible for the security and exploitation of the
country in his area.”

Thus, this supposedly new definition corresponds not only to the
meaning but even corresponds literally to the definition introduced
by the defense, and it is completely incomprehensible why the
prosecution burdened its rebuttal with it.

Already in this basic order of 3 April 1941, the executive power
of the Commander of the Army Group Rear Area, i.e., of my client,
is decisively restricted. While, according to paragraph 12,* the
commanders in chief of the armies, in exercising executive power,
were bound only by the directives of the Commander in Chief of
the German Army in compliance with the provision of Army Man-
ual 90, section 13, states that the Commander of the army group
Rear Area, in the army group rear area to be taken over by the

* Paragraph 12 of von Roques 2, von Roques Defense Exhibit 2 states: “In the army area
the commanders in chief of the armies exercise executive power and are responsible for the
security and the exploitation of the country”.

419

army group, had to exercise executive power according to the
directives of the Commander in Chief of the Army Group. Thus,
he was in addition, subject to the authority to issue directives of
his superior commander in chief of the army group.

This meant — I quote here the testimony of the lb of Army
Group South, Colonel Schall — ( Tr . p. 5030) :

“That the army group had the right of intervention if execu-
tive power was not handled m the manner desired by him; for
instance, if it was either done in an inadequate fashion or if it
was handled too strictly. At any rate, as far as I recall, that
was the view of the commander in Chief of the Army Group
South and his chief of staff.”

The fact that use was made by the army group of this authority
to issue directives, was described by the same witness.

3. Restrictions in the administrative field

The above-mentioned order by the Army High Command, dated
3 April 1941, however, also results in restrictions in the executive
power in the administrative sphere. While otherwise the admin-
istration of an occupied enemy territory represents the main task
of the military commander, here, for the Russian area, it is stated
already in the introduction [of the order] that the planned admin-
istration and exploitation of the country “will be a later concern.
It is not the task of the German Army.” This restriction men-
tioned in the introduction is explained as follows in section II
under the heading “Administration and Exploitation of the
Country” :

“The conquered enemy territory will only be taken over into
a planned administration after it has passed out of the army
group rear area. Up to this time, only such measures are to
be undertaken which are absolutely necessary for the security
of the rear area and the exploitation of the country for the
troops.”

Thus, according to this order, the Commander of the Army Group
Rear Area was not even in a position to establish a long term
planned administration, but he had to take over the administrative
measures already instituted by the armies and, if necessary, to
supplement them. I must point out here that this was also
inevitable because of the constant change of his area of command.
Parts of the area, which were subordinated to him on one day, he
frequently had to relinquish again after 10-14 days — as proved
by the maps of the prosecution ( NOKW 3151 through 3166, Pros.
Exs. 1481 through 14.96) — to the agencies of the civilian adminis-

tration of the Government Genei’al which followed him, and later
to the Reich Commissariat Ukraine. It is clear that in these
circumstances no long term administrative measures could be
taken, and that frequently improvisation was necessary.

4. Restriction in the judicial field

Nor was the military commander unrestricted in the field of the
administration of justice. One of the basic rights of the holder
of the supreme power, i.e., the head of State, is the right to
pardon in every penal proceedings. Likewise he has the right to
establish courts and special courts, as provided in Article XII B,
77, Section II of the Manual for the General Staff Service
(NOKW-1878, Pros. Ex. U2) . In Russia, on the other hand, the
Fuehrer decree of 13 May 1941 concerning the execution of mili-
tary jurisdiction in the Barbarossa area ( C-50 , Pros. Ex. 59 A)
excluded the entire administration of justice for the Russian area,
and with that, took away from the commander the right to estab-
lish courts and to exercise the right to pardon. In the entire
judicial field, the military commander retained only the right to
issue legal regulations.

5. Exclusion in the economic field

If one can still speak of executive power, even if only in the
most restricted sense, I now come to the fields, which really would
have belonged to the sphere of tasks of a holder of the executive
power, but which, however, for the Russian area as a matter of
principle were not delegated to the formal holders of executive
power. Both in the economic field and in the sphere of police
powers, Hitler, as the sole holder of supreme power, had divided
it in the operations area, delegating the economic measures to

Goering and the police powers to the Reich Leader SS.

*******

6. Exclusion in the police field

I am now going to deal with the last — and in this trial — decisive
point in the sphere of executive power, namely, the fact that the
entire executive police power to deal with the civilian population
was not delegated to the military commander as holder of the
executive power, but to the Reich Leader SS. This restriction is
evidenced by a number of documents introduced by the prosecution
and by myself.

The nontransference to the holder of the executive power of
the executive police power in the operational area was already
laid down on principle in the OKW order of 13 March 1941 (447-
Ps, Pros. Ex. 588) the directives for special areas pursuant to

421

Instruction No. 21 Case Barbarossa. There, it is stated in section
I 2 that in the operational area of the German Army, the Com-
mander in Chief of the German Army has the right — “to exercise
executive power and may transfer his authority to the com-
manders in chief of the army groups and armies.”

In section I 2(b) it continues:

“In the operational area, the Reich Leader SS is, on behalf
of the Fuehrer, entrusted with special tasks for the preparation
of the political administration * * *. Within the scope of these
tasks, the Reich Leader SS shall act independently and on his
own responsibility. The executive power vested in the Com-
mander in Chief of the German Army and in agencies deter-
mined by him, shall not be affected by this.”

This means nothing more than that the Reich Leader SS with his
officials is entrusted with the execution of tasks which, strictly
speaking, belong to the sphere of the holder of the executive power,
and that the nominal holders of the executive power only receive
what remains of the executive power after the Reich Leader SS
has been assigned his tasks. Thereby, a clear line of distinction
is drawn between the tasks of the German army on the one hand
and those of the Reich Leader SS with his officials on the other.

The corresponding arrangement for the army group rear area
is to be found in the Army High Command order dated 3 April
1941. In this order, which thoroughly explains the activity and
the range of tasks of my client, police tasks are mentioned only in
one passage, namely, in section I 6(d) where it says:

“The Feldgendarmerie [Military Police] and police units are
to be assigned to police service (traffic control, regular police
service) .”

It was only in this sphere, then, that police tasks were delegated
to my client, and judging by the place this provision has in this
order it is obvious that only military police tasks can be meant.
Not until section 7 of this order is there any mention of the
civilian population, and the subsequent section 8 states :

“The Reich Leader SS with his own officials carries out special
tasks in the army rear area and the army group rear area inde-
pendently and on his own responsibility. A special order will
be issued in regard to this.”

The special orders pertaining to this matter have been submit-
ted by the prosecution, that is to say the Army High Command
order concerning the regulation of the commitment of the Security
Police and the Security Service within the organization of the
German Army dated 28 April 1941 (NOKW-2080, Pros . Ex. 8J>7)

422

and the order of the Reich Leader SS dated 21 May 1941 ( NOKW -
2079, Pros. Ex. 848) issued in agreement with the High Command
of the Army.

Contrary to the claim made by the prosecution in paragraph 46
of the indictment, that the Einsatzgruppen of the Security Police
and the Security Service “worked with the support and under the
command of the armed forces”, it is evident from these prosecu-
tion documents and from the result of the hearing of the evidence,
that the SS and Police forces were directly subordinated to the
Higher SS and Police Leader for the tasks entrusted to him
directly by the Reich Leader SS. It has been proved beyond doubt
that these units were not subordinated to my client, neither as
regards their tasks, nor from a disciplinary or judicial standpoint,
but only as regards territorial supervision. Under paragraph 1
of Prosecution Exhibit 848 it is stated :

“The Higher SS and Police Leader with his command staff, is
subordinated with regard to marching, rations, and quarters
to the commander of the army group rear area concerned. The
SS and Police troops and special task forces of the Security
Police are subordinated to the Higher SS and Police Leader for
carrying out the missions assigned by me directly.”

Under paragraph 2 of the same document it is further stated :
“The SS and Police forces committed are subordinated to the
commander of the army group rear area with reference to
marching, rations, and quarters. All legal and disciplinary
affairs will be handled under their own competence.”

According to 3(b) of this order, the regular police had to carry
out their task exclusively in accordance with the basic instructions
of the Reich Leader SS.

The Einsatzgruppen of the Security Police and the Security
Service were subordinated in accordance with paragraph 2 of the
Army High Command order dated 28 April 1941 ( NOKW-2080 ,
Pros. Ex. 847) to the Chief of the Security Police and the Security
Service, from whom they received pertinent instructions which
they carried out on their own responsibility. Through this docu-
ment it is established beyond any doubt that police tasks were
carried out inside the sphere of power of my client, and that the
executive power entrusted to him did not extend to this field of
activity.

Cooperation between the armed forces and the police according
to paragraph 2 of the Army High Command order, dated 28 April
1941, was limited to the field of counterintelligence and the anti-
partisan warfare. As regards the armed forces, the counter-
intelligence officer appointed to the staff Ic/AO {NOKW -256,

423

Pros. Ex. 8^5) and the Secret Field Police were commissioned to
handle this field of activity, and the Security Police had to deal
with civilian matters. This was the only cooperation between
the armed forces and the police provided for in the Russian
territory.

As shown by the evidence, a cooperation, even though a loose one,
was actually established in the field of counterintelligence and the
antipartisan warfare. However it must be stated, that the police
supervision of the civilian population in the Russian territory was
not entrusted to the armed forces, but to the units of the Security
Police and the regular police under the command of the Higher SS
and Police Leader. The units of the Higher SS and Police Leader
had — in accordance with paragraph 1 of the Prosecution Exhibit
847 — to carry out the following tasks with the forces of the Secu-
rity Police in the occupied area of the East (NOKW-2080, Pros.
Ex. 8A7) :

“In the army group rear area (that is to say in the area of my
client) : Investigating and combating efforts directed against
the State and the Reich, as far as they are not connected with
the enemy armed forces.”

“In the army rear area: Securing certain objects before the
commencement of operations (material, archives, files, pertain-
ing to organizations, associations, groups, etc., hostile to the
Reich or the State), as well as of particularly important indi-
viduals (leading emigrants, saboteurs, terrorists, etc.).”

The forces of the regular police subordinated to him had to
carry out the normal tasks were similar to those carried out by
the police of all countries in the world. Any special tasks outside
the police executive power is not mentioned in any order.

In summary the following can be stated in regard to the field of
the police executive authority: The orders, submitted as prose-
cution documents, refute the charge of the prosecution that the
Einsatzgruppen worked under the command of the armed forces,
for they show beyond any doubt that the police officials were under
the command of the Higher SS and Police Leader and that he,
in turn, was directly subordinated to the Reich Leader SS with
respect to the field of his tasks. The military commander was
only the territorial superior, to whom they were subordinated in
matters pertaining to marching, food, and quarters. As regards
his power of command he had no influence on their actual activity.

* % * * ❖ * *

424

7. Responsibility on the basis of the limited transfer of executive

power

The division of the supreme state power in his area, however,
excludes any responsibility on the part of the military commander
for the fields which were not expressly entrusted to his care, and
in which he had neither the rights nor the obligations which are
nominally those of the supreme state power.

According to the principles described here, my client was
restricted as military commander in his area of command by
orders which were issued before he took office and in the drafting
of which he took no part whatsoever. Therefore, the question here
is, to what extent does the superior order exclude guilt on the
part of a defendant before the Nuernberg Tribunals.

As I have already mentioned, my client was not familiar with
the tensions existing behind the scenes of the Third Reich. What
he could gather from these orders ( von Roques 2, von Roques
Defense Ex. 2; von Roques 48, von Roques Defense Ex. 4; NOKW-
2080, Pros. Ex. 847; NOKW-2079, Pros. Ex. 848) was the fact
that the State tasks in the occupied area — contrary to the prin-
ciples known to him — were no longer to be carried out exclusively
by the actual military command authorities, and that, therefore,
they were no longer complete masters in their own sphere of activ-
ity with regard to their rights as well as to their duties.

The rights and obligations of an occupying power towards the
civilian population of an occupied territory are based on the pro-
visions of the Hague Rules of Land Warfare. But the latter
does not apply to the war between Russia and Germany, for,
according to Article 2 of the Agreement pertaining to the Laws
and Customs of Land Warfare dated 18 October 1907, the pro-
visions of the Hague Rules of Land Warfare are applicable only
if all the belligerents are partners to this pact. But the U. S. S. R.,
did not join in this agreement. In this case under consideration
therefore the provisions of the Hague Rules of Land Warfare
cannot be applicable, but only the generally acknowledged provi-
sions of international law.

But even according to the provisions of the Hague Rules of
Land Warfare it cannot be established that it is the army of a
belligerent state which has to carry out the obligations of an
occupying power. Article 43 of the Hague Rules of Land Warfare
merely states that after the legal power has actually been taken
over by the occupiers, they have to take all necessary steps to
restore public order. Article 44 speaks of “a belligerent” who is
not permitted to force the population to make statements. Article
46 mentions that the honor and the life of the citizens are to be

425

respected. This obligation, which one can very well consider
automatically as international law, applies however, as is evident
from the wording of this provision, to the occupying, the bellige-
rent power. But the army is not the belligerent party, the army
is not the occupying power, the occupying power in the sense of
this provision is the state , for only states are objects and subjects
of international law. The state, as such, has the obligations
towards the civilian population as stipulated by international law.
But whom the state entrusts individually to carry out the occu-
pation tasks is entirely its own affair. There is no obligation based
on international law to commission the armed forces exclusively
with these tasks. In my opinion it is the concern of the occupying
state whether it wishes to entrust the tasks stipulated by inter-
national law to the armed forces, or whether it carries them out
through its civilian agencies. Undoubtedly, the occupying state
must maintain peace and order, must establish an administration,
must take over the supreme state power exercised previously by
the enemy. However, whether the occupying state does this
through the establishment of a military administration or a civil-
ian administration, or even through a combination of both, in my
opinion, there are no stipulations laid down by international law
in this respect.

The witness Hans Boetticher, Chief Judge Advocate with the
Military Commander in France, was questioned by the Tribunal
with respect to this very problem. The presiding judge asked
him (TV. pp. 8692-93) :

“Now as the accredited German authority for maintaining
order and security in the occupied country, do you think it is
valid under international law for the army to abdicate as to a
part of its authority and turn that over to the civilian police, not
only within its area, but to return a part of a conquered popu-
lation for trial before civilian courts? I am just asking for
your opinion, if you think it proper.”

His answer was the following :

“As far as I know, the occupation power is authorized to
institute a military or civilian administration at its will. Hence
it must be possible to delegate some of these tasks which are
more suitable for treatment by civilian agencies, to delegate
such tasks to a civilian agency.”

Hitler, because he alone embodied the supreme state power in
the dictator state of the Third Reich, actually split up the occu-
pation tasks in the Russian area from the very beginning. In
particular he already transferred the police executive authority
in the operational area to a civilian agency, to wit to the Reich

426

Leader SS, on the basis of a Special Directive No. 21 which I men-
tioned just now, to pave the way for the political administration.
There is no reason why such a division of tasks must be considered
contrary to international law. All the more reason why the mili-
tary commanders could not discern and could not be expected to
discern that this division was contrary to international law or
even criminal.

If, therefore, their head of state gave an order which trans-
ferred the police and economic tasks to other authorities of the
same state, this order was binding for them, because it was
neither criminal nor was there anything to show a criminal nature.
Under the rules which are also valid here in Nuernberg, they
were only entitled to refuse obedience to criminal orders.

The Tribunal in Case No. 7 against the Southeast Generals*
stated the following in its judgment:

“We are of the view, however, that if the illegality of the
order was not known to the inferior and he could not reasonably
have been expected to know of its illegality, no wrongful intent
necessary to the commission of a crime exists and the inferior
will be protected.” (Case No. 7, Tr. p. 10U28.)

In this case, beyond any doubt, it was a matter of orders which
my client could not presume to be illegal. But if the military
commanders complied with the order, as they could and had to,
any control with respect to the police measures was withdrawn
from them and, therefore, they had neither a possibility nor an
obligation to interfere, since these were the orders.

On the basis of the evidence it is impossible to uphold any
longer the assertion that General von Roques was the sole bearer
of executive power in his area, and that he, therefore, could be
made responsible for everything that happened in this area. But
if the prosecution were to assert that General von Roques, in spite
of such binding orders, was responsible on account of his position
as Commander of the Army Group Rear Area and because he neg-
lected his duty to control everything that happened in his area,
which duty was incumbent upon him by virtue of his position and by
virtue of international law, then the prosecution would even go
further than the well known decision in the Yamashita case.

In that case, the responsibility of a military commander in an
occupied territory with respect to occurrences which were un-
known to him, was based on the neglect of the duties of control
incumbent upon him. I may be permitted to point out that this
decision has already been challenged by the majority of the judges
of the [U. S.] Supreme Court itself, and that, furthermore, the

* United States vs. Wilhelm List, et al. ( Vol. XI.
893964 — 51 29

427

judgment was rejected by many American jurists, because it was
said that it was an exaggeration of the duties of a military com-
mander to such an extent that it became intolerable. But if we
compare that case with the pending one, there is a difference
which I want to point out in particular. General Yamashita was
made responsible exclusively for actions of units subordinate to
him. 1 quote the following from the indictment against Yama-
shita r 1

“The charge, as far as now relevant, is that petitioner, be-
tween 9 October 1944 and 2 September 1945, in the Philippine
Islands, 'while commanders of armed forces of Japan at war
with the United States of America and its Allies, unlawfully dis-
regarded and failed to discharge his duty as commander to con-
trol the operations of the members of his command , permitting
them to commit brutal atrocities and other high crimes against
people of the United States and of its Allies and dependencies,
particularly the Philippines; and he * * * thereby violated the
laws of war.’

“Bills of particulars, filed by the prosecution by order of the
commission, allege a series of acts, one hundred and twenty-
three in number, committed by members of the forces under
'petitioner’s command , during the period mentioned.”

The “crucial point” of the charge was — 2

“* * * the unlawful breach of duty by petitioner as an army
commander to control the operations of the members of his com-
mand by 'permitting them to commit’ the extensive and wide-
spread atrocities specified. The question then is whether the
law of war imposes on an army commander a duty to take such
appropriate measures as are within his powers to control the
troops unde r his command for the prevention of the specified
acts which are violations of the law of war * * *.”

The same document 3 , therefore, established the following pre-
supposition :

“Hence the law of war presupposes that its violation is to be
avoided through the control of the operations of war by com-
manders who are to some extent responsible for their sub-
ordinates.”

The charge was based on this viewpoint, and only in considera-
tion of this viewpoint can the decision of the Tribunal be under-
stood which stated that Yamashita, as the military governor and

1 United States Reports, vol. 327 . October term 1045, pp. ISM 4.

* Ibid, pp. 14 15.

3 Ibid, p. 15.

428

commander, would have had the absolute duty “to take such
measures as were within his powers and appropriate in view of
the situation” in order to protect prisoners of war and the civilian
population.

The conviction of General Yamashita was thus based on the
charge that he did not properly control the forces under his
command ; while the charge in the pending case would have to be,
that a military commander wrongfully allowed other agencies not
subordinate to him and not even belonging to the armed forces to
operate at will without supervision. Such an extension of the
responsibility of a commander for the guilt of another, in my
opinion, does not find the least support in international law.

A formal responsibility is no proof of actual criminal guilt, it
must be supported by a criminal element of action or omission. A
judgment in a criminal case must be pronounced only on the basis
of the fundamental principles of penal law, and not on the basis
of faded, empty slogans.

If the prosecution in the indictment has contended that the
police forces did their job under the actual supervision of the
armed forces, the orders hitherto discussed here fail to show the
existence of either a right or duty of the military commanders to
exercise any such control. According to the Army High Command
order dated 28 April 1941 (NOKW-2080, Pros. Ex. 84-7 ) , the
officials of the Reich Leader SS were obliged to impart general
information about the political situation to the commanders of the
army group rear areas. According to the order of the Reich
Leader SS dated 21 May 1941 ( NOKW-2079 , Pros. Ex. 8U8), the
Higher SS and Police Leader was to inform each time the com-
mander of the army group rear area of the tasks devolved on him
by the Reich Leader SS. This information served the purpose of
giving the military commanders a possibility of avoiding any
disturbance to future military operations ; for only in this respect
were they granted the authority at all to issue directives to the
officials of the Reich Leader SS. But at no time were the military
commanders authorized to issue directions in the [SS] opera-
tional field, or to exercise any control over measures which the
police had to carry out on their own competency. The reports
which my client received from the Higher SS and Police Leader,
and the subject of these reports will be discussed in detail later on.
For the moment we can confine ourselves to saying that he learned
from these reports only such things which referred to the co-
operation fixed by the orders.

It seems to me absolutely misleading to derive a general obliga-
tion to exercise control from the fact that cooperation in certain
fields, did exist. Such an obligation could consist merely in the

429

checking of whether this cooperation was effected in an orderly
fashion.

* * * * * * *

In the course of this trial the duties of the occupying power
toward the indigenous population of the occupied territory have
been discussed many times. The prosecution in particular has
always very emphatically maintained that an occupying power has
to guarantee the protection of life and property of the population.
This took up a large part of the entire trial proceedings on the
part of the prosecution. But very little was said, on the other
hand, about the obligations of the population of the occupied
country. With all means at its disposal the prosecution has tried
to prove that the German troops in Russia did not fulfill their
obligations towards the indigenous population. Nothing, or almost
nothing, was said about the fact that at least parts of the popu-
lation right from the start failed to fulfill the obligations, which,
according to the rules and principles of international law, are
held to be the duty of the population of an occupied country. If
on the one hand it is stated that the occupying power has to take
over all constitutional obligations toward the indigenous popula-
tion, it must, in my opinion, be made perfectly clear that the in-
habitants of an occupied country too have the same duties towards
the occupying power as they previously had towards their own
state. Of the limitations which result as a matter of course from
a state of war I need not speak here ; they do not concern us in this
respect. In my opinion, however, it must be pointed out emphati-
cally that rights and obligations must in this respect be mutual.
Only a population which on its part fulfills its obligations, can
demand that the occupying power should treat it in the manner
demanded here by the prosecution of the German occupation
forces in Russia.

From this point of view it is important that the U. S. S. R.,
incited the population of the areas occupied by the German troops,
right from the beginning of the war, to take an attitude which
certainly was not in accord with the principles of international
law. When Stalin in his well known proclamation of 3 July 1941
( Hoth 58, Hoth Defense Ex . 58) called upon every man, woman,
and child to fight the invaders with all means, when he declared
that the Russian territory must become the grave of every Ger-
man, and that the life of the invaders should be made hell for
them, the population who answered this call, on the other hand,
must not complain that the occupying forces, holding executive
power, use all means at their disposal to put a stop to such illegal
acts. When the prosecution claims that the Russian population

430

was forced to defensive actions in face of the behavior of the
German occupation troops, and that this gave origin to the fierce
partisan struggle, this allegation is a clear distortion of the facts.
The German leadership knew that such behavior would have to be
expected from the population in Russia ; it therefore gave orders
right from the start to enable the troops to defend themselves
against such behavior by the civilian population which violated
international law. Those orders, however, were only enforced
when and only insofar as the civilian population acted in violation
of international law and endangered peace and order in the area
as partisans, saboteurs, and guerrillas.

All orders issued for and in Russia must be understood and
evaluated from these points of view, which were predominant.

However, before entering into a discussion of the individual
orders and incidents which form the subject of the indictment, it
is necessary to comment on a decisive point of view, which, in my
opinion, has not been given sufficient emphasis in the course of the
proceedings so far, and which refers to the principles underlying
the treatment of the civilian population.

The Hague Rules of Land Warfare of 1907, as was explained
to the Tribunal by Professor Dr. Maurach’s ( General Defense 79,
General Defense Ex. 79) expert opinion, do not apply to the Rus-
sian area. Soviet Russia had not joined the Hague Convention on
Land Warfare. As a matter of fact the provisions of the Hague
Convention on Land Warfare could not claim applicability in
Russia, since the U. S. S. R. herself had placed herself outside
the community of nations observing international law. This being
the case, in Russia only that minimum of unwritten rights was
applicable which every civilian population of an occupied country
has always had to be accorded by the occupying power throughout
the ages.

But even under the provisions of the Hague Convention on Land
Warfare, the population of an occupied country may demand of
the occupying power only the observance of that legal state which
it has been accorded under its own national laws. Article 48 of
the Annex to the Convention on the Application of the Laws and
Customs of Land Warfare requires the occupying party to make
all provisions for the restoration and maintenance of public order
and public life, unless there exists an unsurmountable obstacle,
under observance of the national law.

In other words, no national of an occupied country may claim
better treatment under an occupying power, than he enjoyed under
his national government prior to the occupation. Accordingly
in going into the question whether measures taken by the German
occupying power in Russia constituted violations of international

431

law , it wall be of decisive importance to ascertain whether or not
the legal state under the occupation implied a considerable deteri-
oration compared with the legal state prior to the occupation. In
his opinion, Professor Maurach gave the following standard form-
ulation of this legal principle ( General Defense 79, General De-
fense Ex. 79) :

“In determining the limits of permissible conduct in a war
against a state which stands outside the community of nations
observing international law, the following two points must be
taken into consideration:

“a. The methods of warfare employed by the states bound by
the conventions may in principle be adapted to those employed
by the state which stands outside international law. There is,
however, a definite limit which must not be overstepped. This
limit is set off by the so-called elementary rights of the non-
participants and innocent parties (soldiers, prisoners, wounded,
and the civilian population). These rights must not be vio-
lated. The adaptation of the methods of warfare thus does not
mean the admissibility of methods based solely on wartime
expediency * * *.

“b. The nature of the so-called elementary rights is not deter-
mined in accordance with the law of the state accused of violat-
ing these rights, nor in accordance with the regulations of the
war conventions, but it is determined by the domestic (national)
law of the state to which the categories of persons in question
belong. In other words, whether or not the employment of pris-
oners of war for munitions production, the conscription of
civilians for compulsory labor, etc., is permissible, is determined
in such a case only by the domestic law of the Soviet Union * * *
The occupying state has neither the occasion nor the legal possi-
bility to impose its own legal system upon the population of
the occupied enemy territory. The population continues in
principle to be governed by its own national law. That is a
generally recognized tenet of international law, which is also
stressed in the occupation regulations of the Rules for Land
Warfare. * * *

“The occupation regime may not cause the population being
given more rights through the occupation than it possessed
hitherto. All it [the population] can demand is that its position
does not deteriorate essentially in comparison with conditions
under the previous sovereignty.”

On these principles it must be examined and decided whether
the basic orders, such as they were issued for the occupied Rus-
sian territory, brought about a considerable deterioration in the

432

position of the civilian population as compared with that under the
law of its own national government. In posing this question I have
consciously disregarded the subjective aspect.

In my opinion, these two legal points of view will have to be
given precedence, if a correct decision in regard to the conduct of
the indicted military commanders and, in particular, of my client
is to be reached.

* * * * * * *

6. EXTRACTS FROM THE CLOSING BRIEF FOR
DEFENDANT LEHMANN

******

A. The Dictatorship

I. Any evaluation of the attitude of the defendants must be con-
sidered from the point of view that Hitler was the holder of
supreme power.

II. His orders were intra-state laws.

1. Under the regime of the Weimar Constitution not even the
judge — a fact which is quite undisputed — had the authority to
examine in court whether a law —

a. Was in accordance with moral demands.

b. Was in accordance with international law.

2. The natural conclusion follows, therefore, that under the
changed state conditions of the Third Reich there was even less a
question of obligation to resist those orders of Hitler which were
materially laws.

III. l. Against this fact the objection is sometimes raised that,
according to German law, not even the soldier was obliged to obey
such orders which required him to commit a crime. This point of
view is wrong. The pertinent Article 47 of the Military Penal
Code stipulates that above the commanding superior stands a
higher authority which protects the subordinate if he does not
obey an illegal order, that is to say, a higher superior or an inde-
pendent court, independent in the sense of division of power.
These premises are not realized if the head of the state himself,
the holder of the entire supreme power, gives an order which
might be objectionable.

2. In addition, Article 47 is applicable only when the superior
“intends” a “crime” with his order. According to the law of all
countries a crime is an act of which the supreme power dis-
approves, and for this reason threatens with punishment. Even
from the purely abstract point of view it is, therefore, impossible
to consider the orders of this same supreme power as crimes in
the sense of the internal penal code.

433

IV. It therefore follows: In the Third Reich when Hitler, as
head of the state, gave an order, there was neither an obligation
nor a justification to refuse obedience.

V. In particular, however, no actual possibility or practical
means of open disobedience existed.

1. Any contention to the contrary denies —

a. The fact of the dictatorship.

b. The omnipotence of this dictatorship which has never been
disputed before and which is proved by the documents of the
prosecution.

2. Open resistance led, in practice, only to the opposite of what
was to be prevented. This is proved by the statements and testi-
monies of all witnesses in high positions who, themselves, had to
work in the Third Reich. Open resistance was, therefore,
senseless.

3. Resistance of this kind exposed those resisting and their
families to the harshest measures. The prohibition to appeal to
superior orders, as stipulated by the Control Council Law, does not
exclude — even if it should be presumed to be valid — the claim of
necessity. This cannot be forbidden by any law. It should hardly
be necessary to prove again the seriousness of the situation of
necessity. I would like to refer only to the well known speech of
Hitler on 23 November 1939 ( 789-PS , Pros. Ex. 1153), submitted
by the prosecution, in which he proclaimed the extermination of
all who offered him resistance. As regards the situation in the
OKW, I refer to the affidavit of General Westhoff ( Lehmann 129,
Lehmann Defense Ex. 36) and the affidavit of Ministerialdirektor
Tischbein ( Lehmann U33, Lehmann Defense Ex. 222) . From both
affidavits it is evident that Keitel had threatened to hand over the
closest members of his staff to the Secret State Police in case of
disobedience. This corresponds to the testimony of Lehmann.
( Tr . p. 797 U.)

VI. What ways were possible under these circumstances? The
prosecution contends in its closing brief that it is not its task to
show what way would have been open for the defendants. The
arrogance of this statement is surpassed only by its frivolity.
This, in truth, is the real problem of this trial.

Whoever accuses another of having made a mistake need not
have to show in detail perhaps how it should have been done better.
If however, the accused raises the objection that another way
would have meant certain death, or would have been senseless
and could, therefore, not be expected for both reasons, then the
critic must consider these points. If it were but a matter of
political or historical observation, the opinion of the prosecution
might perhaps be acceptable. But here we have to deal with the

434

establishment of criminal guilt, that is, the fact that the defendant
can be accused of his attitude. Nobody, however, can be punished,
if there is no way out of a situation and if no one else is able
even to point out such a way.

The prosecution is perfectly aware of this fact. Because it also
cannot find a reasonable way out, it solves the problem by denying
its existence.

VII. If grave personal consequences were to be avoided in the
Third Reich and at the same time something practical was to be
achieved, only the following was possible:

1. Objection.

2. If that failed, delay.

3. If that did not help, weakening and modification within the
limits of one’s own possibilities.

VIII. Even the measures under VII had to be kept within the
forms which the dictatorship — even then the gravest risks for
those resisting — still left open.

In this respect it was not a matter of saving one’s soul by writ-
ing ineffective protest notes and then washing one’s hands in inno-
cence. The point was to achieve something practical where it
still seemed possible.

To this end, a man in a responsible position had to have the
courage to work for the smaller evil if he could hope thus to pre-
vent the greater evil. And in this case he had to make concessions
where otherwise nothing could be achieved, and to choose his
words so that it did not become impossible right from the start
to achieve his goal.

IX. The clearest proof that no other ways were possible is that
all the influential men of Germany, and among them the most
powerful, only acted in this manner insofar as they offered any
resistance at all to Hitler. In the armed forces three groups of
higher leaders could be determined —

1. A small group of leaders, who were unconditionally loyal to
Hitler.

2. A large middle group of those who agreed with much and
disagreed with much.

3. The group of the actual resistance movement.

The groups 2 and 3 behaved exactly alike in the practical han-
dling of affairs — they objected, they delayed, they modified but,
when everything failed, they carried out their orders. Typical
examples of this kind are General Haider and Admiral Canaris.

That some members of the 3d group took other courses also
(preparation for a revolution, contact with countries abroad) is a
matter on its own and must not be confused with the problem
itself. First, there is no such thing as a legal obligation to bring

435

about a revolution. In addition, these measures had no success
at all. They show only the following: that German generals
employed such means in the midst of war is the strongest proof
that this was a situation without precedent and example. They
considered the situation so desperate that they took a road which
previously would have been absolutely unthinkable for a German
general even to consider, but at the same time they carried out
Hitler’s orders simply because there was no other way out.

X. Life creates everywhere situations which do not offer a satis-
factory way out and which demand the sacrifice of discernment.
This applies to the men who have the grave task of working today
as Germans in high government positions under the military gov-
ernments in the same manner as for their predecessors under
Hitler. Objections will be raised against this comparison to the
effect that the Allied commanders do not issue orders in violation
of international law. The present German Government author-
ities hold a different opinion. This is shown by their numerous
complaints published in the press based on violations of interna-
tional law. When these complaints are rejected, the German Gov-
ernment authorities can do nothing more than Hitler’s officials;
they can voice their dissenting opinions, they can object, delay and
modify. After that, they obey.

Proclamation No. 1 of General Eisenhower ( Lehmann 36, Leh-
mann Defense Ex. 267) requires that all orders of the commander
be obeyed “immediately and unconditionally”. And if it should
be said, later on, that —

“Proclamation No. 2 of the Control Council, dated 20 Sep-
tember 1945, about compulsory employment of Germans outside

Germany and its implementation by Russia, was unlawful” —

was then the attitude of the German officials, the participation in
the measures which they (the German officials) opposed but which
were ordered by the Russians, a crime ? Was it a crime if they
stayed there, if they did not flee to the western zones? If, on the
contrary, they tried with all their professional knowledge and
experience to prevent even worse things? Was it a crime?

* * * * sjc * *

IV. How urgently necessary it is to deal with these facts is
shown by a quotation from the closing brief of the prosecution of
10 August 1948 (TV. p. 9575) : “Lord Leicester hath not always
spoken thus.” These words show with terrible clarity that the
prosecution has still not recognized the position of the German
officers and officials in high positions. To stand aside without lift-
ing a hand would have been for Dr. Lehmann, too, the least dan-
gerous and the easiest way out. He would have risked nothing

136

and would not be in the dock today. But there have been many
other men who deliberated which was the better way — to stand
aside or to cooperate. Many of them paid for it dearly. Some
who had to pay with their lives for their attitude would also stand
in the dock today before German and international tribunals, be-
cause appearances speak against them.

In connection with those murdered after 20 July 1944, I may
refer to the proposed Reich Chancellor of the resistance move-
ment, Dr. Goerdeler. He considered his return into active civil
service because he was able to offer more effective resistance
there. I may also refer to the advice of Winston Churchill, given
to State Secretary Kuehlmann, that Kuehlmann should join the
NSDAP in order to use his influence to bring about more modified
tendencies.

The Norwegian Bishop Berggrav testified in Case No. 11 that
the Norwegian resistance movement decided to leave its members
in the Quisling government. All those certainly did not think of
open resistance. All of them had to speak differently than they
thought. If Dr. Lehmann had only rebelled, his actions would,
of course, have been open but would very soon have come to an
end without benefiting anyone. This should always be kept in
mind today when judging events during that time.

* * * * * * *

With reference to the Soviet Union, there are still some particu-
lar legal aspects which must be taken into consideration in a two-
fold respect, and which justify the Barbarossa Order even without
the considerations put forward hitherto. I refer in this connection
to the legal opinion of Professor Maurach submitted by the joint
defense.*

* * * * * * *

Penal Regulations of the Occupied Power

A. I. 1. The actions of the resistance movement outlined in the
foregoing and covered by the Night and Fog Decree and its two
implementation orders correspond to what the American Rules
of Land Warfare likewise declare as illegal. The persons con-
cerned are “war rebels”, “war traitors”, “unauthorized belliger-
ents”, and other war criminals within the meaning of paragraphs
349-351, 354 of the Rules. Such actions need not necessarily be
connected in any way with battles or with combat actions.

2. It is admissible to create a special occupation law for the
punishment of such actions.

Here, quotes from the expert opinion of Prof. Maurach, contained in the brief, are
omitted. They are reproduced in Document General Defense 79, General Defense Exhibit 79,
reproduced in Section VII C2.

437

“ Nature of laws promulgated — An occupant may create new
laws for the government of a country. He will promulgate such
new laws and regulations as military necessity demands. In
this class will be included those laws which come into being as a
result of military rule ; that is, those which establish new crimes
and offenses incident to a state of war and are necessary for the
control of the country and the protection of the army. 1
3. In the event of such actions, the death penalty is justified on
principle.

“War crimes subject to death penalty — All war crimes are
subject to the death penalty although a lesser penalty may be
imposed.” 2

II. This is also the opinion of the literature on international
law. 3

“The invader deals freely with the relations of the inhabitants
of the occupied territory towards himself. He suspends the
operation of the laws under which they owe obedience to their
legitimate ruler, because obedience to the latter is not consistent
with his own safety; for his security also, he declares certain
acts, not forbidden by the ordinary laws of the country, to be
punishable, and he so far suspends the laws which guard per-
sonal liberty as is required for the summary punishment of any
one doing such acts.

“All acts of disobedience or hostility are regarded as punish-
able; and by specific rules the penalty of death is incurred by
persons giving information to the enemy, or serving as guides
to the troops of their own country, by those who, while serving
as guides to the troops of the invader, intentionally mislead
them, and by those who destroy telegraphs, roads, canals, or
bridges; or who set fire to stores or soldiers’ quarters. If the
inhabitants of the occupied territory rise in insurrection, whe-
ther in small bodies or en masse, they cannot claim combatant
privileges until they have displaced the occupation, and all per-
sons found with arms in their hands can in strict law be killed,
or if captured, be executed by sentence of court martial. Some-
times the inhabitants of towns or districts in which acts of the
foregoing nature have been done, or where they are supposed
to have originated, are rendered collectively responsible, and
are punished by fines or their houses being burned.”

III. The American occupation authorities themselves likewise
issued such penal regulations. This is shown by Ordinance No. 1

1 Rules of Land Warfare, U. S. Army Field Manual 27-10 (Govt. Printing Office, Washing-
ton, 1940) , par. 288.

2 Ibid., par. 357.

3 Hall, W. E., A Treatise on International Law (Oxford, 1924, 8th Ed.), pp. 561-562.

438

of the Military Government for Germany ( Lehmann 324, Leh-
mann Defense Ex. 291.)

IV. The enumerations of the criminal acts in the implementation
orders pursuant to the Night and Fog Decree ( 669-PS , Pros. Ex.
798; 836— PS, Pros. Ex. 804) are a catalogue, not a repetition of
the facts. The facts themselves are contained in the ordinances
of the military commanders or in the German penal law, as far
as this was applicable under Article 161 of the military penal code
( Tr . pp. 8109-8110, 8660) in the occupied territories in the case
of criminal acts against the occupation power.

V. A comparison between the implementation orders pursuant
to the Night and Fog Decree, the Rules, and the American Ordi-
nance No. 1 shows a complete coincidence with respect to the facts
and the threatened punishment — with the one exception that Ordi-
nance No. 1, as regards the criminal facts, goes much further than
the Night and Fog Decree.

The following survey shows this :

Night and Fog Decree
and Implementation
Orders

“Death Penalty on
principle.”

1. Implementation
Order catalog 1,1,
“Criminal assault.'

2. Espionage

3. Sabotage

4. Communist
activities.

5. “Acts which are
likely to cause
disturbance/'

6. Giving aid and
comfort to the
enemy

7. Possession of
arms.

* *

Rides

357. “Death
Penalty.”

349, 351.

202, 350.

350, 351.

349, last line ;

350, middle and
last sentence ;
354 (disobedi-
ence to orders
and directives
of the military
government) .

350.

349, 350, 351,
354.

354 (the right
to issue
ordinances) in
connection

with 284, 288.
* *

Ordinance No. 1

Art. 1 “Crimes
threatened with
death.”

Art. I, Nos. 4, 7.

Art. I, No. 1.

Art. I, No. 14.

Art. I, No. 6,

moreover Nos. 2, 5,
and 20, Art. II, Nos.
21, 43 (General
clause.)

Art. I, No. 18, Art. II,
No. 40.

Art. I, No. 2, 6, Art. II,
20 .

Art. I, Nos. 9, 10.

* * *

439

Special features of the Night and Fog decree

A. The secrecy of the proceedings and the exclusion of the per-
petrators from the outside world was , according to Hitler 9 s order ,
the chief aim of the decree.

The measures were directed against the suspects themselves, at
the same time, however, against their relatives, friends, and the
public of the occupied country. This they had in common with
any punishment which is intended as a deterrent measure. “The
punishment should be deterrent * * *."* The special feature in
this case was that the deterrent factor was also to be contained in
the manner of the proceedings. The question is, whether the
harshness which this entailed was covered by international law .

B. Regulations of the written international law , which ex-
pressly forbid such a measure do not exist.

But the question is whether the principle of humanity , generally
acknowledged in international law prohibits this measure.

C. One look at the American practice in Germany shows, that
this is not the case.

I. According to the secret “Arrest Categories Handbook"' of
the Allied Headquarters ( Lehmann 475 , Lehmann Defense Ex.
So 4 ) , about 300,000 persons were to be taken into automatic arrest
in Germany and Austria (no. 4 of the introduction). A criminal
offense of any kind was not the determining factor for this pro-
cedure, but rather the membership in certain organizations or
activity in certain offices was sufficient (part 2 of the handbook) .
In the introduction to the handbook (no. 3), the following was
even stated in reference to the organizations :

“It is not possible to say, it is indeed unlikely, that the most

serious danger to the security of the occupying forces will come

from any of the organizations listed."

In spite of this fact the security of the occupying forces was given
as a reason for this “Arrest Policy."

II. Those hundreds of thousands of Germans who thus fell into
the category of automatic arrests were completely shut away from
the outside world by the occupation authorities after the capitula-
tion until the end of 1945, sometimes even longer. They were not
permitted to send or receive letters or any other news in the
camps.

Documents Lehmann 351 through 377 are submitted as Leh-
mann Defense Exhibits 156 to 182 which furnish exhaustive proof
on this matter. The prohibition applied without exception to the
hundreds of thousands of Germans who were kept in the intern-

* Rules of Land Warfare, op. cit. supra, par. 357.

140

raent camps, among them many mothers with small children and
many pregnant women. It applied likewise to many thousands of
German soldiers who came into internment camps, although they
were entitled to the status of prisoners of war with the privilege
of being able to write letters on the very first day. ( Lehmann 351,
Lehmann Def. Ex. 156; Lehmann 352, Lehmann Def. Ex. 157;
Lehmann 361, Lehmann Def. Ex. 166.) The prohibition applied
even to prisoner of war camps. ( Lehmann 365, Lehmann Def.
Ex. 170; Lehmann 366, Lehmann Def. Ex. 171; Lehmann 367,
Lehmann Def. Ex. 172; Lehmann 368, Lehmann Def. Ex. 173;
Lehmann 369, Lehmann Def. Ex. 17 U; Lehmann 370, Lehmann
Def. Ex. 175; Lehmann 377, Lehmann Def. Ex. 182.) The pro-
hibition existed also in British, French, and Norwegian camps.
( Lehmann 372, Lehmann Def. Ex. 177; Lehmann 373, Lehmann
Def. Ex. 178; Lehman 377, Lehmann Def. Ex. 182.)

The document book furnishes proof in this respect from 30
camps (among them 23 German, 2 French, 2 British, 3 Nor-
wegian camps). More evidence has not been submitted for the
sole reason of avoiding an accumulation of material. It certainly
would not have been difficult.

III. 1. These measures of the Allies of separation from the out-
side world, were — as proved by the similar reports from the many
various camps — decreed by order of higher authorities. And the
internees were informed to this effect. ( Lehmann 359, Lehmann
Def. Ex. 16 h; Lehmann 360, Lehmann Def. Ex. 165; Lehmann
362, Lehmann Defense Ex. 1 67. )

2. All protests were without avail. ( Lehmann 351, Lehmann
Def. Ex. 156; Lehmann 353, Lehmann Def. Ex. 158; Lehmann 356,
Lehmann Def. Ex. 161; Lehmann 357, Lehmann Def. Ex. 162;
Lehmann 359, Lehmann Def. Ex. 16U.)

3. Exceptions from the ban on writing were not permitted even
in case of death. ( Lehmann 359, Lehmann Def. Ex. 16A.)

4. The internees were compelled to comply with this ban on
sending or receiving mail by the threat of confinement or impris-
onment. ( Lehmann 352, Lehmann Def. Ex. 157; Lehmann 359,
Lehmann Def. Ex. 16U; Lehmann 361, Lehmann Def. Ex. 166.)
People attempting to approach the camps from outside were fired
on. ( Lehmann 353, Lehmann Def. Ex. 158.)

IV. Particularly notable is the following: even the relatives and
wives of the internees thus secluded from the outside world were
threatened with heavy punishment if they passed on or attempted
to pass on information concerning the internees by letter or by
telephone.

On the basis of the censorship regulations of the Military Gov-
ernment, ( Lehmann 335, Lehmann Def. Ex. 302), section I 6g, it

441

is forbidden to pass on the names of persons arrested, detained,
interrogated, or interned by the Allied Forces as well as the loca-
tion or description of places of internment.

Under number 7 of these censorship regulations, any completed
or attempted circumvention or violation of this directive is threat-
ened with any lawful punishment, including death. A mother
telling her daughter by letter about the camp where she located her
husband, may, therefore, be punished with any punishment.

V. This seclusion from the outside world was not generally
abolished until the beginning of 1946, i.e., 8 or 9 months after the
capitulation.

But the possibility of such a complete exclusion and of the
ban on notifying relatives about an arrest continued in special
cases. It exists to this day.

The directive from the State Department to General Clay dated
11 July 1947 states under section I 11 (d), that in future —

“Persons so detained will be permitted to communicate with
their nearest relative or friend unless urgent security consid-
erations require an exception.” ( Lehmann 331, Lehmann Def.
Ex. 298.)

D. The reason given for these Allied measures was the necessity
of securing the Allied Forces, i.e., military necessities. Thus:
Handbook for Arrest Policy, Introduction No. 3; thus: Directive
to General Eisenhower, dated April 1945, Part I, 2 b ( Lehmann
329, Lehmann Def. Ex. 296) ; thus also the directive to General
Clay, section I, 11(d) already quoted: “You will by regulation
limit arrests for security purposes to cases where overriding con-
siderations of military necessity require such procedure.”

E. The term “military necessity” has been defined by written
international law and by the customs of war.

I. As regards the object of war, the Rules of Land Warfare
(par. 22) state the following:

“The object of war is to bring about the complete submis-
sion of the enemy as soon as possible by means of regulated
violence.”

II. The following is stated in the preamble of the Hague Con-
vention on Land Warfare, 5th paragraph :

“According to the views of the High Contracting Parties,
these provisions, the wording of which has been inspired by
the desire to diminish the evils of war, as far as military re-
quirements permit, are intended to serve as a general rule of
conduct for the belligerents in their mutual relations and in
their relations with the inhabitants.”

442

This 5th paragraph is a clause maintaining the military necessity
against the protecting stipulations of the Hague Convention on
Land Warfare and, therefore, also against any guaranty relating
to life, liberty, and property of the citizens of occupied terri-
tories.

This legal view is common property of the science of inter-
national law. The Handbook on International Law by Hyde,
volume 2, page 301, for instance, reads as follows:

“If the term military necessity implies great latitude, and is
invoked by way of excuse in justification of harsh measures,
it is because the law of nations itself permits recourse thereto
in case of imperative need, and allows a belligerent commander
to be the judge of the existence of the need.”

Oppenheim-Lauterpacht, 5th Edition, volume II, page 179, reads
as follows :

“Apart from restrictions imposed by the law of nations upon
belligerents, all kinds and all degree of force may be used in
war in order that its purpose may be achieved, in spite of their
cruelty and the utter misery they entail.”

The Rules of Land Warfare (par. 23) state the following:

“Military necessity justifies a resort to all the measures which
are indispensable for securing this object and which are not
forbidden by the modern laws and customs of war.”

Bonfils, the French Professor of international law, voices quite
similar views. ( Lehmann 321, Lehmann Def. Ex. 288.)

III. But this extension of the military necessity is not un-
limited. It has been restricted by the principle of humanity which
likewise dominates the written and unwritten international law,
according to the preamble of the Hague Convention on Land
Warfare. The preamble likewise forbids the abuse of the discre-
tionary powers of the military commanders.

The principle of humanity has been defined in the Rules of
Land Warfare to the effect that it forbids “employment of any
such kind or degree of violence as is not actually necessary for
the purpose of war.” (Par. 46.) Not admitted, therefore, is
cruelty — “that is, the infliction of suffering merely for spite or
revenge” ( Rules of Land Warfare, par. 25) .

F. There are no set standards for defining what must be con-
sidered abuse of discretion, cruelty, or inhumanity. Some indica-
tions have been supplied by the wartime measures adopted by
the states taking a leading part in the progressive development
of international law.

For the entire complex of this case it is impossible, therefore,

893964—51 30

443

to separate the analysis of the German measures in any field of
tvarfare from a contemplation of the measures ivhich the Allies
considered justified by military necessity .

It makes no difference in this respect whether such measures
by the Allies are connected with the progressive development of
weapons or not. In a war during which it was considered com-
patible with international law to kill within 24 hours 180,000
German civilians in one city immediately before the end of the
war, other standards than those deemed appropriate 40 years
ago apply generally and in the entire sphere of the treatment
of civilians. The claims of humanity cannot look any different
from the air than they do on land. Whoever — to the detriment
of the civilian population — extends the concept of military neces-
sity with respect to the effect of weapons as far as the Allies did,
must grant the same right to the enemy with respect to other
spheres of this war. And defensive measures against a resistance
movement and against partisans are also war. They also serve
to bring about victory, they also save one’s own and enemy blood
(which, according to the declaration of Secretary [of War]
Stimson, was the purpose of the use of the atom bomb in Japan).
(Lehmann 323, Lehmann Def. Ex. 290.) Neither is it possible
to say that international law is flexible only with respect to the
war measures of the one party, i.e., of the victors , and to main-
tain that the same international law is inflexible with respect to
the war measures of the vanquished and to stick to the views
which, allegedly, prevailed when the Hague Convention on Land
Warfare was created. If somebody had asked the delegates at the
Hague in 1907,

“Is it possible, in consideration of the progressive develop-
ment of weapons, to imagine a situation in which 180,000
civilians are killed in compliance with international law during
one single day’s fighting?”

he would have been swept away by a storm of indignation. Sup-
posing if now, during a war in which the killing of these 180,000
civilians is considered permissible, resistance movements and
partisan fighting arise which dwarf everything known in the
history of war, and if this development coincides with the general
tendency of the war to mass extermination of the civilian popula-
tion with weapons, then it is unfair to restrict the enemy in his
defense against such resistance movements, to principles which,
allegedly, prevailed in 1907.

If it is possible to kill hundreds of thousands of peaceful civil-
ians in the course of fighting , then it cannot be forbidden to treat
a fetv thousand civilians , strongly suspected of having committed

444

criminal acts, according to other and more severe principles than
usual in former times.

Secretary [of War] Stimson and the Interim Committee were
of the opinion that the use of the atom bomb could not but
result in a “tremendous shock”. “Such an effective shock would
save many lives.”

Whoever believes it to be compatible with international law
to destroy in one second the lives of nearly 100,000 noncombatants
through such “a tremendous shock” cannot regard it as an illegal
“program of terror” if, in the course of 3 years, about 7,000 per-
sons were shut off from the outside world because, after careful
investigations, they were strongly suspected of having partici-
pated in a highly dangerous movement which violated interna-
tional law.

G. The Allied measures, therefore, provide us with a criterion
for what may be considered admissible within the sphere of mili-
tary necessity. In the course of my final plea (2V. pp 9968-9969)
I have already briefly discussed the arguments of the prosecution,
to the effect that any such comparison is inadmissible because
the occupation of Germany disregards the Hague Convention on
Land Warfare. I refer to my statements, but want to stress in
particular the following: from whatever angle of international
law the situation of Germany is considered, irrespective of
whether the Hague Convention on Land Warfare applies to this
occupation directly, indirectly, or not at all, no occupation power
is exempt from the application of the principles of humanity.
Just as there cannot be “legal custom of war” which, if applied
by another, becomes “inhumane”, so there cannot be any “legal
occupation measures”, which, if ordered by another occupation
power, could be considered “inhumane”. There should be no
need to motivate this statement in detail.

From that we may infer : What the occupation authorities are
now doing in Germany — disregarding criminal excesses of indi-
viduals which can be left out of the consideration — is legal under
international law and complies with the claims of humanity ac-
cording to the opinion of the Allies.

By this standard established after the war, therefore, the
activities of the Allies during the war can be judged. This is all
the more permissible because the following facts are self-evident:
Actions in time of war directed against a resistance movement
which is a deadly menace to the very existance of the occupation
power need not be weaker than actions after the war in an
occupied country where scarcely a hand has been lifted against
the occupation power.

*******

445

G. Extracts from Final Briefs Concerning the
Responsibility of a Chief of Staff

I. INTRODUCTION

In the Hostage Case, Tribunal V found that on the facts estab-
lished by the proof in that case the defendants Foertsch and
Geitner were not guilty for conduct committed while acting as
chiefs of staff to a superior military commander. (See opinion
and judgment in United States vs. Wilhelm List, et al., Case
No. 7).

However, on the facts established in the High Command Case,
Tribunal V A found defendant Woehler guilty of conduct com-
mitted while acting as a chief of staff. Because the decision
in the Hostage Case preceded the High Command trial, both the
prosecution and the defense took pains to deal with the question
of the responsibility of a chief of staff under different circum-
stances.

Below is an extract from the closing brief for the defendant
Woehler (section 2) followed by an extract from the closing brief
of the prosecution against the defendant Woehler (section 3).

2. EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT WOEHLER

*******

Now the only question is whether Woehler, without such knowl-
edge, is also responsible for the actions of others — namely the
staff officers — under any circumstances.

This is impossible according to general criminal law. However,
we have to discuss the Yamashita judgment which establishes the
responsibility of the commander in chief for war crimes and
crimes against humanity committed in his sphere, and which was
already applied repeatedly as precedent by the Nuernberg Mili-
tary Tribunal. In my opening statement and the final plea I
already explained that the very far-reaching argumentation of
the Yamashita judgment — which I should like to question in any
case — cannot under any circumstances, even according to this
judgment itself, be applied, over and above its application to the
commander in chief, to the chief of staff as well, to whom the
staff officers are subordinated solely in internal disciplinary staff
matters (compare also my final plea). The documentary evidence
submitted against Woehler, insofar as it refers to the 11th
Army, nowhere reveals any activity in connection with which he

446

might have assumed the authority of the commander in chief.
On the contrary, he at no time held an independent position. It
was not his own decision — which alone would be important in
regard to criminal law — that induced him to give marching orders
to the Einsatzkommandos, but the above mentioned OKH order,
and the directives of his commander in chief to carry out the
details of this order on his instructions. This brings us close
to the plea of superior orders. I consider it necessary to point
out that there is a decisive legal difference between the action
based on superior orders — which according to Control Council
Law No. 10 is to be only of mitigating value, but not to serve as
an excuse — and implementations effected by a chief of staff. The
commander who carries out the order issued by superior authori-
ties, i.e., orders his subordinates to implement it, is after all
acting on the basis of his own decision, namely the decision to
carry out the superior order in his sphere of command. The chief
of staff, however, who drafts instructions and orders and partly
also signs them personally by order of his commander in chief
does not act in the sense of criminal law at all. Not what he
wrote, but the decision of his commander in chief alone, is causal
for the consequences arising from this order in writing. The
chief of staff is not faced with the problem whether he is to induce
other persons to carry out a superior order, for he is not entitled
at all to give orders to anybody on his own authority. The only
thing he could do would be to go to his commander in chief and
advise him not to pass on the order issued by higher quarters
or, taking the case of the Einsatzgruppen as an example, to evict
the Einsatzgruppen from his area. Then it is again up to the
commander in chief whether he wishes to follow this advice or
not. Thus, the fact that such advice was not given can never be
held against the chief of staff as a default in violation of his
duty, which is of significance under criminal law. The following
is to be added in this respect: Assuming that, in order not to
render himself punishable, the commander should have refused
to carry out orders issued by higher authorities, there is still no
legal maxim stating that one is obliged to request another person
— who alone is answerable for the consequences — to refuse to
implement such orders. This would apply with regard to the
relationship between chief of staff and commander in chief. Of
course these questions are actually only significant if it is assumed
that proof had been submitted of Woehler’s knowledge of at
least some of the executions, and that it now remains to be ex-
amined what his actions in his capacity as chief of staff should
have been. Even if this is assumed — an assumption which I
again emphatically reject as being completely unproved — no crim-

447

inal connection between Woehler and the executions can be in-
ferred therefrom.

It is by no means the more theoretical legal position of Woehler
as chief of staff alone which excludes his criminal responsibility
for the activities of the Einsatzgruppen. I believe that Woehler
gave a convincing description in the witness box of the operations
of the 11th Army and, in connection therewith, his tasks and
his position as chief of staff of this army. The prosecution pro-
duced no counterevidence with regard to this description. Ac-
cording to this statement Woehler devoted his entire energy and
all his thoughts exclusively to the very difficult operations and the
often dangerous position of the army. As confirmed by the
witness Haider, he had been appointed chief of staff of the 11th
Army for this specific purpose and he was able to apply himself
to these exclusively operational tasks all the more fully since
he was not distracted by other matters happening in the army
area. It is the view held by the defense, that in such a position
not even a commander in chief can be held responsible for inci-
dents outside his sphere of operations. The Yamashita judgment
is of a different opinion. However, it is beyond any doubt that
the chief of staff is not obliged to share the concern of the com-
mander in chief, namely his responsibility for matters within his
executive power in the territory under his command. And since
nobody can be expected to attend to matters which are not
within the limits of his tasks — the question of a moral responsi-
bility must be left aside here — it stands to reason that Woehler
cannot be expected either to show interest in matters which
came within the area of executive power. Regarded in this light
the question of whether Woehler had knowledge of the execu-
tions or not, loses increasingly in importance. Moreover, the
witness Ohlendorf confirmed that in his opinion Woehler was
exclusively responsible for the implementation of tactical tasks
whereas the commander in chief was competent for those as well
and in addition to the possessed executive power. Consequently
Woehler cannot in any event be reproached for not acquainting
himself more fully with the details of the so-called security tasks
of the Einsatzkommandos, since the above-mentioned OKH order
gave no reason to assume that executions were intended in gen-
eral, and since despite several meetings Ohlendorf did not inform
him to that effect.

In my arguments in connection with Woehler’s position as chief
of staff, the “Manual for the General Staff in Wartime” was
frequently mentioned ( NOKW-1878 Pros. Ex. U 2; Woehler 1,

448

Woehler Def. Ex. 1).' In order to eliminate all possibilities of
error, I wish to point out that this manual cannot be compared
with the laws of the Hitler state, to which the defendants of other
trials have referred for their justification. The difference is the
following: If a law — for instance one of the racial laws — con-
sidered legal, ordered and organized an action which was adjudi-
cated by the IMT to be a crime against humanity, and which also
to a certain extent originally constituted an element of crime in
Germany, then reference to such a law as justification was re-
jected by the IMT and the Military Tribunals as irrelevant. How-
ever, this is not the case with regard to the “manual”. The
“manual” does net deal with actions which are punishable accord-
ing to international law, or which represent an element of
ordinary crimes. Woehler does not refer to this “manual” in
order to justify the occurrences in the territory of the 11th Army
and his own actions; he merely refers to the fact that the
manual draws a boundary line of competency, and that for this
reason he is not responsible under criminal law for the incidents
with which he is charged.

Already at first glance this is logically entirely different from
reference to a justifying law. In this case it may be left unde-
cided whether it is possible now to condemn certain actions as
crimes which in the Hitler Reich were ordered by law. There is
no doubt, however, that, if at that time an officer or civil servant
did not have certain authority, according to regulations such as
the “Manual for the General Staff in Wartime”, this authority
cannot be attributed to him today. For this reason the part of
the “Manual” wdrich refers to the position of the chief of staff
is binding for this Tribunal as well.

Supplementary to my explanations in the opening statement 1 2
I may be permitted to draw attention to the following: In
Woehler’ s defense I do not refer to his position as chief of the
general staff, because I am cf the opinion that a chief of staff
could never commit a criminal act. Neither did I allege that
something to this effect is contained in the judgment of Military
Tribunal V against Foertsch and Geitner. However, if a chief of
staff commits only such acts as are prescribed by the “Manual
for the General Staff in Wartime”, he consequently does not make
decisions of his own, which are always the prerequisite of criminal
intent. Woehler’s activity which is to be evaluated here, especially
the marching orders to the Einsatzkommandos and the orders for
combating francs-tireurs, are as much within the order of the

1 Many of the provisions of this manual are quoted helow in the extract from the prosecu-
tion’s closing brief against the defendant Woehler, (section 3).

2 Pertinent extracts from the opening statement for the defendant Woehler appear in vol. X,
section III E.

449

commander in chief as those orders which were signed by the
defendants Foertsch and Geitner in Case No. 7. For this reason —
I have to repeat it once more on account of the importance of this
point — it is of no significance in connection with the plea of
superior orders whether the defendant acted under irresistible
pressure and whether he did anything to escape from this
coercion. Neither Foertsch in Case No. 7 nor Woehler alleged
that he disagreed with his commander in chief and that he was
forced to sign the orders in question against his better judg-
ment. Nor did Foertsch in Case No. 7 allege that he was an un-
important personality, a child or insane, so as to rid himself of
his responsibility. There is no doubt about the fact that the
chief of the general staff occupies a very important military posi-
tion ; however the “manual” clearly limits his responsibility to his
internal relationship toward the commander in chief.

All this has been taken into account by Military Tribunal V in
Case No. 7, as well as the complete difference between the posi-
tion of the Chief of the OKW, Keitel, and that of the chief of staff
of an army (Woehler). It must be avoided that the fair evalua-
tion of Woehler’s connection with mass liquidations of Jews be
obscured by the latter's [the liquidations] sinister outer aspect.
However, the outer aspects of Case No. 7 were not exactly pleas-
ant either if one adds the numbers of hostages killed in the
course of reprisal measures, which at that time the prosecution
brought in direct criminal relation to Foertsch arid Geitner. It is,
no doubt, correct that the position of the chief of staff does not
entail complete freedom of action, i.e., that it did not authorize
Woehler deliberately, and what is more, spontaneously, to take
an active part in the execution of so-called undesirable elements.
However, this very fact has not been established in the evidence,
as remains to be shown by the individual documents which are
as yet to be discussed in this connection.
*******

3. EXTRACT FROM THE CLOSING BRIEF OF THE
PROSECUTION AGAINST DEFENDANT WOEHLER

*******

Woehler relies most heavily on the defense that he, being chief
of staff from the beginning of the war until his promotion to
acting commander of an army corps in April 1943, does not bear
any responsibility for this period of his activities. He claimed
through the mouth of his counsel that —

450

“If a chief of general staff with an army could in any way
bear responsibility for criminal happenings within the area
of an army, such findings would have been made in the case
of General Foertsch. The fact that Military Tribunal V did
not arrive at such a decision proves that responsibility under
criminal law can never be directed against the commander in
chief and the chief of general staff simultaneously, just as
military responsibility in the Wehrmacht was never divided
between commander in chief and chief of general staff.”
( Tr . p. 5607.)

He relies on the fact that the two defendants in Case No. 7,
United States vs. Wilhelm List et al., Foertsch and Geitner, who
were in similar positions, were acquitted by Tribunal V and that
thus a precedent was created which precludes the finding of guilty
for Woehler for crimes committed in the area of the 11th Army
and in Army Group Center respectively.

The prosecution submits that such is not the case. Tribunal V
found in the case of the defendant Foertsch:

“The prosecution contends that Foertsch as chief of staff
of the various army groups successively in command in the
southeast was a powerful and influential figure. It is insisted
that he exercised this power and influence upon his various
commanders in chief in such a manner as to incriminate him-
self, irrespective of the fact that he had no command responsi-
bility. The charge that a conspiracy existed which had for
its purpose the decimation and annihilation of various racial
and religious groups finds support in the record, but it fails
utterly to establish that the defendant Foertsch, or any of the
armed forces officers jointly charged with him, ever became
a party to any such preconceived plan. We think the evidence
shows that, insofar as the defendant is concerned, the actions
in the Southeast were motivated by a desire to attain peace and
order among the civilian population — a matter that was essen-
tial to an adequate program of defense against an Allied in-
vasion.

“The nature of the position of the defendant Foertsch as
chief of staff, his entire want of command authority in the field,
his attempts to procure the rescission of certain unlawful orders
and the mitigation of others, as well as the want of direct
evidence placing responsibility upon him, leads us to conclude
that the prosecution has failed to make a case against the
defendant. No overt act from which criminal intent could be
inferred has been established.” [Emphasis supplied.] ( Case
No. 7, Tr. pp. 10U97-98.)

451

And in the case of the defendant Geitner :

“The evidence shoivs that General Bader reserved unto him-
self the authority to issue orders for the arrest of hostages and
the execution of all reprisal measures . It appears that the
commanding general handled these matters with the aid of a
special officer ivho had been trained in the law. It was the
duty of this officer to examine the particular problem with
regard to the correctness of the description of events and
submit his conclusion to the military commander who made
the decision. The defendant von Geitner was necessarily in-
formed of the order made by virtue of his position. It became
his duty to prepare the order and approve its forms, which
he usually did by placing his signature or initials on it. This
he contends is the extent of his participation in the issuing
and distributing of reprisal orders.

‘The applications for reprisal actions were generally made by
(1) the administrative sub-area headquarters, (2) by troop
commanders, or (3) the Higher SS and Police Leader. They
were then referred to the special legal officer who worked
on them and submitted the result to the commander. The com-
mander then made the decision and delivered it to the defendant
von Geitner for preparation and approval as to form. The
latter was generally indicated by his initials or signature. The
order then was sent on its way through regular channels by
von Geitner. No doubt exists that the order ivas that of the
military commander and that the defendant von Geitner lacked
the authority to issue such an order on his oivn initiative. He
contends that he ivas opposed to the reprisal policy carried
out in this area , a statement sustained by the record . He does
not say that reprisal killings against the population were not
necessary, or that he considered it unlawful to carry out meas-
ures under certain conditions. The question posed is whether
the stated participation of the defendant von Geitner in his
capacity as chief of staff is sufficient to establish criminal
liability. The evidence fails to show beyond a reasonable doubt
that he aided , abetted or took a consenting part in acts ivhich
were crimes under international laivs. No responsible act is
shown to have been committed by him from ivhich a guilty
intent can be inferred . The charge that a conspiracy existed
which had for its purpose the decimation and annihilation of
racial and religious groups is not established by sufficient evi-
dence insofar as this defendant is concerned. The record does
not show his participation in slave labor programs or concen-
tration camp activities, although he knew of them.

452

“His testimony that he opposed all such measures is not
effectively disputed. These things, coupled with the nature and
responsibilities of his position and the want of authority on his
part to prevent the execution of the unlawful acts charged,
serve to relieve him of criminal responsibility. We find the
defendant von Geitner not guilty.” [Emphasis supplied.]
( Case No. 7, Tr. pp. 10500-02).

The wording of the opinion proves beyond doubt that the
Tribunal V arrived at its findings of ‘‘not guilty” in respect to
the defendants Foertsch and Geitner for reasons which emanated
from their specific cases, and in fact did not find that a position
of chief of staff, as such, excluded them from criminal responsi-
bility. The Tribunal adjudicated only that the proof adduced
against these two defendants did not warrant a finding of guilty.

In the case of the defendant Foertsch, for example, the Tri-
bunal V found that the evidence in the record supported the
charge of the prosecution that a conspiracy existed which had
as its purpose the decimination and annihilation of various racial
and religious groups, but that this evidence failed to establish
that the defendant became a party to any such preconceived plan
[supra). The prosecution submits that in the case of Woehler
evidence was adduced which proves his participation not only in
such planning but also in the execution of such plans beyond any
doubt.

In the case of the defendant Geitner, Tribunal V made the
finding —

“The evidence shows that General Bader reserved unto him-
self the authority to issue orders for the arrest of hostages and
the execution of all reprisal measures. It appears that the
commanding general handled these matters with the aid of a
special officer who had been trained in the law.” [Emphasis
supplied.] ( Case No. 7, Tr. p. 10500.)

And —

“No responsible act is shown to have been committed by him
from which a guilty intent can be inferred. The charge that a
conspiracy existed which had for its purpose the decimation and
annihilation of racial and religious groups is not established by
sufficient evidence insofar as this defendant is concerned.”
[Emphasis supplied.] ( Case No. 7, Tr. p. 10501.)

In the case before this Tribunal the evidence proves that either
Woehler himself, or officers of his staff who were directly sub-
ordinated to him, issued and executed orders which resulted in
crimes, and participated actively in such crimes. This Tribunal

453

is called upon to decide whether the defendant Woehler — and not
the defendants in Case No. 7 — was a principal in, accessory to,
ordered, abetted, took a consenting part in, was connected with
plans and enterprises involving or was a member of an organiza-
tion or group connected with the crimes charged in the indictment.
If the proof shows such criminal activities of Woehler, his posi-
tion as chief of staff undoubtedly does not and cannot constitute
something like a carte blanche permitting him — the chief of staff
— to commit crimes.

In this connection it is of importance to analyze the duties
and responsibilities of a chief of staff in the German Army.

The German “Handbook for the General Staff Service in War-
time” of 1 August 1939 ( NOKW-1878 , Pros. Ex. 42) provided:

“1. The chief of the general staff.
*******

“3. At the head of the staff stands the chief of the general
staff. He is the first adviser of the commander in chief in
all fields.

*******

“The chief of the general staff has to inform the commander
in chief of all official matters which are of significance to him.
The commander in chief, on his part, should inform his chief
(of staff) concerning all directives issued by him directly.
*******

“5. The chief of the general staff is the superior of all mem-
bers of the staff unless something else is established in indi-
vidual cases by the s.o.p. Overall soldiers, with the exception
of those senior to him, the chief of the general staff of an
army group and an army has the disciplinary jurisdiction of a
division commander; the chief of the general staff of an army
corps has that of a regimental commander. [Emphasis sup-
plied.]

“6. The chief of the general staff regulates the business rou-
tine of the entire staff unless the standard order of procedure
provides for individual persons acting in special spheres.
*******

“10. The chief of the general staff directs the verbal reports
to the commander in chief. He may take part.
*******

“11. The chief of the general staff examines all drafts before
they are submitted to the commander in chief. He is authorized
to sign documents which neither have basic significance nor con-
tain evaluations concerning the recipient. The signature reads
as follows:

454

‘For the Army Group Command (Army Command, Corps
Command) The Chief of the General Staff.’
****** *

“The chief of the general staff or, upon his orders, the Ila,
sign the staff order.

*******

“15. The chief of the general staff makes recommendations
concerning all officers of his subordinate staff. He makes
recommendations concerning general staff officers of sub-
ordinate offices on a separate sheet of paper.

“16. The chief of the general staff bears the responsibility
for the training of all general staff officers within his sphere
of command.

*******

“18. The chief of the general staff represents the commander
in chief during short absences. For longer absences, the higher
command authority designates the representative of the com-
mander in chief.

*******

a. The 1st General Staff Officer (la)

“20. Ia is the chief of the operations section and he is con-
cerned with matters pertaining to troop leadership.

“He reports to the chief of the general staff and generally
attends the latter’s consultation and report with the com-
mander in chief insofar as those concern affairs of leadership
of the troops. He keeps the staff informed on the situation
(staff critiques see No. 8). Ic deputizes for Ia.
*******

b. The 3d General Staff Officer (Ic)
*******

“26. Ic is responsible for the cooperation of all officers and
units employed in securing information.

*******

c. The counterintelligence officer (AO) with army group

headquarters and army command (subordinate to Ic)

*******

“35. The tasks of AO derive from the counterintelligence
tasks in peace time. * * * AO, by order of the Ic, issues orders
to the Gestapo possibly active in the area of operations.
*******

455

“ 66 . Oberquartiermeister is subordinate to the chief of the
general staff of the army.

“68. By order of the commander in chief, Oberquartier-
meister divides the army area into the combat area and the
army rear area. He is responsible for all matters of executive
power in the army area.”

| nth
. defer.
. ii ev

The organizational chart of an army command contained in the
handbook (Ibid., page 41 of original) shows the important mem-
bers of the staff who are under the direct supervision of the chief
of the general staff.

The Field Manual No. 90 of 1 June 1938 in its edition of 1940
( NOKW-2708 , Pros. Ex. 41 ) , gives further details about the sub-
ordination of the Oberquartiermeister to the chief of staff. It
provides —

“11. The Oberquartiermeister is subordinate to the chief of
the general staff of the army.

to dii
exam:
inch:

easel

aid!

'lash

wrh

not 1

“He regulates the division of the army territory in a fighting
and an army rear area.”

Thus it can be seen that Woehler, in his capacity as chief of
staff, was the direct superior of the Oberquartiermeister, Ic and
AO officers, a fact which is not denied by him. (TV. p. 5894.)

Woehler is charged with responsibility for his own acts and
also with responsibility for the acts of these staff officers, his
direct subordinates. It is not denied by him that he had com-
mand authority over the staff officers ( Tr . p. 5955).

The defense bases its argument that Woehler in his capacity
as chief of staff cannot be held responsible, mainly on the follow-
ing provision of the handbook (NOKW-1878, Pros. Ex. 42) :

“Decision and responsibility lie with the commander in chief
alone. The chief of the general staff has to commit himself
fully for the execution of the will of his commander in chief,
even if the latter’s points of view and decisions are at variance
with his own.”

There can be no doubt about the fact that the here defined
responsibility is something completely different than criminal
responsibility. The responsibility referred to in the handbook
is responsibility for the strategical and administrative manage-
ment of the particular army to the military superiors; in other
words, the commander in chief of the army was not entitled to
excuse eventual mismanagement of the army or setbacks by the
inefficiency of his chief of staff. It is, however, hard to under-

456

stand what this type of responsibility should have in common
with responsibility for criminal deeds. It is not disputed that the
defendant Woehler, in his capacity as chief of staff, might not,
in every case, have been the instigator of a criminal order. It
might well have been that such an order was conceived by his
commander in chief, although according to the regulations he had
to direct verbal reports to the commander in chief, and had to
examine all drafts before they were submitted to the commander
in chief. (NOKW-l 878 } Pros. Ex. 1^2.) How far the personal
influence of a chief of staff on his commander goes, and in this
case how far the influence of Woehler on his commanders Schobert
and Manstein went, is hard, if not impossible, to prove. Woehler
has left no doubt in his testimony that he was, if inferior in rank,
superior in intelligence to Schobert (TV. pp. 56U7 y 569 U) and
worked in complete agreement with Manstein (Tr. p. 5879). Cer-
tainly earnest opposition by Woehler against an order issued by
one of these two men, or against measures taken by them, would
not have been fruitless.

*******

457

X. FINAL STATEMENT OF DEFENDANT VON LEEB TO
THE TRIBUNAL ON BEHALF OF ALL DEFENDANTS

A. Introduction

Article XI of Military Government Ordinance No. 7, dealing
with the order of trial, provides that “Each defendant may make
a statement to the Tribunal” after the closing arguments of the
prosecution and the defense. In the High Command Case the
defendant von Leeb alone made a statement to the Tribunal,
speaking the last word on behalf of all the defendants. This
statement is reproduced below (section B).

B. Final Statement of the Defendant von Leeb*

Presiding Judge Young: Dr. Laternser.

Dr. Laternser: If the Court please, I want to announce to the
Court that Field Marshal von Leeb will speak the last word for
all of the defendants. I ask that he be permitted to do it from
the prosecutor’s stand.

Presiding Judge Young: He will have that permission in just
a moment. In view of the fact that one of the defendants, Field
Marshal von Leeb, will speak for all, he, of course, will not be
limited to ten minutes if he desires more time than was in the
order assigned to each defendant. The Tribunal will now hear
such statement as Field Marshal von Leeb desires to make and
he may make it from the podium.

Defendant von Leeb : May it please the Tribunal, I have been
allotted the task of making the final speech on behalf of all the
defendants.

I believe that we will not be looked upon as presumptuous in
upholding our opinion that the German officer was respected
beyond the boundaries of his own country. He was respected not
only on account of his technical qualifications, but mainly because
of those soldierly qualities which form the essence of the soldier’s
profession. We deem these qualities to include loyalty, close ties
between officers and men, obedience, a sense of duty, unselfishness,
and personal gallantry. The unusually high casualties among
officers in both World Wars, including general officers, give proof
of our readiness to lay down our lives.

We, the defendants, have belonged to this body of officers for
many years. We have been trained and have grown up in this

* Tr. pp. 9,997-10,000. 13 August 1948.

458

spirit of the soldier's profession. We have fulfilled our duty as
soldiers with equal loyalty under the German Emperor, during the
First World War, under the Weimar Republic, and in the Third
Reich. However, in the Third Reich, under the dictatorship
of Hitler, we found ourselves faced with a development which
was in contrast to our principles and nature. It is not true to
say that we as officers changed — the demands made of us became
different.

We sought to oppose this evolution under the Third Reich, but
we lacked the means which might have been effective under dic-
tatorship.

Above all, the body of officers as a whole was the only section
of the population in Germany which, according to the constitu-
tion and to tradition, possessed no civic rights. We held no right
of franchise or election. We were not permitted any activity in
any political sphere whatsoever, be it domestic or foreign politics.

Therefore no one among us was able to exert any influence on
Hitler's conduct of the affairs of state at home or abroad. We
were neither able nor permitted to enter politics. We were
merely required to be soldiers.

Even as soldiers we did not incite to war. We, of all people,
were familiar with war and all its attendant horrors from per-
sonal experience of front-line combat during the First World War.
On the contrary, we did everything in our power to dissuade
Hitler from his bellicose plans.

However, once the head of state, who alone was vested with
unlimited powers of decision on war or peace had commanded
the initiation of acts of war against the will and advice of his
generals, we were bound to do our duty as soldiers like any other
Germans.

We were not entitled to demand enlightenment on the political
reasons underlying a war and to refuse our services if such
reasons should appear inadequate to us. We are not prepared to
believe that the leading generals of any other state would have
refused their services in the same situation.

War is a bitter life-and-death struggle between two nations.
Any war will become all the more bitter and grim the longer it
lasts, especially when two ideologies clash, and World War II
followed the same course of developments. It terminated in
destruction of an unparalleled extent inflicted on German soil.

In the East the grim aspect of the war was determined by
Russia. Stalin's appeal for the slaughter of all Germans induced
the partisans to pervert the conduct of the war.

We, as German soldiers, had up to that moment refrained from
such conduct, and we had not desired and sought such extremes ;

893964—51 31

459

neither in Russia nor in other theaters. We were forced to seek
effective protection against this degeneration in warfare. We
acted in self-defense.

In regard to Hitler's instructions which went against our
humane and soldierly feelings, we were never merely his tools
without a will of our own. We did oppose his instructions as far
as we deemed this to be possible or advisable and we toned their
wording down and rendered them ineffective or mitigated them in
practice. The counterorder issued by the Commander in Chief of
the Army on the maintenance of discipline and many other coun-
termeasures offer proof of our self-defense and our opposition.

No blame attaches to the Wehrmacht for anything that may
have happened on Russian soil beyond the purely belligerent pur-
pose of the war. Such actions occurred without our knowledge
or participation. None of the defendants had any knowledge of
the secret Fuehrer Decree and the organized mass murder carried
out by the Einsatzgruppen which were not subordinated to us.

We are unable to grasp the charge contained in count four,
according to which we are supposed to have participated in a
common plan and conspiracy for the commission of crimes under
Control Council Law No. 10.

In summarizing, I wish to state that we, the defendants, were
required to do our duty as soldiers under a dictatorship in its
most severe form, with unlimited legislative power, with mani-
fold abuses, and with violent distrust of our persons, which grad-
ually turned into hatred and called forth the reaction shown in
the events of 20 July 1944.

Outwardly we were fighting our enemies abroad, but at the
same time we were fighting at home against the Party with its
influences, its demands, and its almost unlimited power — espe-
cially on the subject of military jurisdiction — and we were even
fighting against our own Supreme Commander. What a terrible
tragedy is revealed by the fact that we as the appointed guardians
of the soldiers’ duty to obey were forced to act towards our own
Supreme Commander in defiance of this chief axiom of soldierly
conduct.

No soldier in all the world has ever yet had to fight under such
a load and such tragedy.

In the First W orld War we did not infringe any laws, and we
remained what we were during the Second World War. We were
not guided by criminal instincts, as the prosecution seeks to con-
vey, but we now look back upon a life of disinterested service
and unselfish fulfillment of duty towards our country and our men.

There is no need, nor is it in fact possible, to tear the mask from

460

our face, as the prosecution has told the German public over the
radio, because we never wore a mask.

We are soldiers who upheld their soldierly honor even in this
Second World War amidst the turmoil of dictatorial violence. As
our witnesses we call upon those hundreds of thousands of front-
line soldiers who fought under our orders.

Presiding Judge Young : We appreciate the assistance of coun-
sel for defense and prosecution in the presentation of this case
and in bringing it, so far as the evidence is concerned and the
arguments, to a conclusion. The Tribunal will now be recessed
for preparation of its judgment, subject to call, of which, of course,
you will have proper notice.

461

XI. JUDGMENT

Official transcript of the American Military Tribunal [Tribunal V] in the
matter of the United States of America , vs. Wilhelm von Leeb, et al. f defend-
ants, sitting at Nuernberg, Germany, on 27 October 1948, Justice John C.
Young, presiding.

*******

Presiding Judge Young: The Tribunal will now proceed to
read the judgment.

This Tribunal is composed of Presiding Judge John C. Young
(formerly Chief Justice of the Supreme Court of Colorado), and
Associate Judges Justin W. Harding (formerly U. S. District
Judge First Division, District of Alaska) and Winfield B. Hale
(Justice Tennessee Court of Appeals, on leave of absence).

It was created under and by virtue of Military Government
Ordinance No. 7, effective 18 October 1946, adopted pursuant to
Control Council Law No. 10, enacted 20 December 1945, in order
to give effect to the London Agreement of 8 August 1945, and the
Charter issued pursuant thereto for the prosecution of war
criminals.

In Nuernberg, on 28 November 1947, in accordance with Ord-
inance No. 7 (Article 111(a)) supra, an indictment was lodged
against the defendants by Telford Taylor, Brigadier General,
U.S.A., Chief of Counsel for War Crimes, acting in behalf of the
United States of America. A copy of the indictment in the
German language was served upon each defendant at least thirty
days prior to arraignment on 30 December 1947, at which time
each, in the presence of counsel of his own selection, entered a
plea of “not guilty.”

The indictment named as defendants :

Generalfeldmarschall (General of the Army) Wilhelm von Leeb,
Generalfeldmarschall (General of the Army) Hugo Sperrle, Gen-
eralfeldmarschall (General of the Army) Georg Karl Friedrich-
Wilhelm von Kuechler, Generaloberst (General) Johannes Blasko-
witz, Generaloberst (General) Hermann Hoth, Generaloberst
(General) Hans Reinhardt, Generaloberst (General) Hans von
Salmuth, Generaloberst (General) Karl Hollidt, Generaladmiral
(Admiral) Otto Schniewind, General der Infanterie (Lieutenant
General Infantry) Karl von Roques, General der Infanterie (Lieu-
tenant General, Infantry) Hermann Reinecke, General der Artil-
lerie (Lieutenant General, Artillery) Walter Warlimont, General
der Infanterie (Lieutenant General, Infantry) Otto Woehler, and
Generaloberstabsrichter (Lieutenant General, Judge Advocate)
Rudolf Lehmann.

462

The defendant General Johannes Blaskowitz committed suicide
in prison on 5 February 1948, and thereby the case against him
was terminated.

THE INDICTMENT

The indictment is in four counts charging (1) crimes against
peace; (2) war crimes; (3) crimes against humanity; and (4) a
common plan or conspiracy to commit the crimes charged in
counts one, two, and three.

Count One — Crimes against Peace — The first count of the
indictment, paragraphs 1 and 2 is as follows :

“1. All of the defendants, with divers other persons, includ-
ing the co-participants listed in Appendix A, during a period
of years preceding 8 May 1945, committed crimes against peace
as defined in Article II of Control Council Law No. 10, in that
they participated in the initiation of invasions of other countries
and wars of aggression in violation of international laws and
treaties, including but not limited to the planning, preparation,
initiation, and waging of wars of aggression, and wars in
violation of international treaties, agreements, and assurances.

“2. The defendants hold high military positions in Germany
and committed crimes against peace in that they were princi-
pals in, accessories to, ordered, abetted, took a consenting part
in, were connected with plans and enterprises involving, and
were members of organizations and groups connected with, the
commission of crimes against peace.”

Then follow paragraphs 3 to 44, inclusive, covering plans of
aggressions, and wars and invasions against Austria, Czecho-
slovakia, Poland, Great Britain, France, Denmark, Norway, Bel-
gium, The Netherlands, Luxembourg, Yugoslavia, Greece, the
U.S.S.R., and the United States of America, and undertook to
show the unfolding of these plans of aggression and to particu-
larize the participation of the defendants in the formulation,
distribution, and execution thereof.

Count Two — War Crimes — Count two of the indictment, para-
graph 45, is as follows :

“45. Between September 1939, and May 1945, all of the de-
fendants herein, with divers other persons including the co-
participants listed in Appendix A, committed war crimes and
crimes against humanity, as defined in Article II of Control
Council Law No. 10, in that they participated in the commission
of atrocities and offenses against prisoners of war and members
of armed forces of nations then at war with the Third Reich

463

or under the belligerent control of or military occupation by
Germany, including but not limited to murder, ill-treatment,
denial of status and rights, refusal of quarter, employment
under inhumane conditions and at prohibited labor of prisoners
of war and members of military forces, and other inhumane
acts and violations of the laws and customs of war. The de-
fendants committed war crimes and crimes against humanity
in that they were principals in, accessories to, ordered, abetted,
took a consenting part in, were connected with plans and enter-
prises involving, and were members of organizations and
groups connected with, the commission of war crimes and
crimes against humanity.”

Then follows paragraph 46, which in general terms sets out
the unlawful acts as follows:

“46. Unlawful orders initiated, drafted, distributed, and ex-
ecuted by the defendants directed that certain enemy troops
be refused quarter and be denied the status and rights of
prisoners of war, and that certain captured members of the
military forces of nations at war with Germany be summarily
executed. Such orders further directed that certain members
of enemy armed forces be designated and treated by troops
of the German armed forces, subordinate to the defendants,
either as, 'partisans, Communists, bandits, terrorists' or by
other terms denying them the status and rights of prisoners
of war. Prisoners of war were compelled to work in war
operations and in work having a direct relation to war opera-
tions, including the manufacture, transport, and loading of
arms and munitions, and the building of fortifications. This
work was ordered within the combat zone as well as in rear
areas. Pursuant to a 'total war' theory and as part of the
program to exploit all non-German peoples, prisoners of war
were denied rights to which they were entitled under conven-
tions and the laws and customs of war. Soldiers were branded,
denied adequate food, shelter, clothing and care, subjected to
all types of cruelties and unlawful reprisals, tortured, and mur-
dered. Special screening and extermination units, such as Ein-
satz groups of the Security Police and Sicherheitsdienst (com-
monly known as the 'SD'), operating with the support and
under the jurisdiction of the Wehrmacht, selected, and killed
prisoners of war for religious, political, and racial reasons.
Many recaptured prisoners were ordered executed. The crimes
described in paragraphs 45 and 46 included, but were not
limited to, those set forth hereafter in this count.”

464

This is followed by paragraphs 47 to 58, inclusive, which par-
ticularize certain unlawful acts, such as the issuance and execu-
tion of the, “Commissar Order,” the “Commando Order,” etc.,
and the participation of the defendants in the formulation, distri-
bution, and execution of these unlawful plans.

Count Three — Paragraph 59 of the indictment, is as follows:

“59. Between September 1939, and May 1945, all of the de-
fendants herein, with divers other persons including the co-
participants listed in Appendix A, committed war crimes and
crimes against humanity as defined in Article II of Control
Council Law No. 10, in that they participated in atrocities and
offenses, including murder, extermination, ill-treatment, torture,
conscription to forced labor, deportation to slave labor or for
other purposes, imprisonment without cause, killing of hos-
tages, persecutions on political, racial and religious grounds,
plunder of public and private property, wanton destruction of
cities, towns and villages, devastation not justified by military
necessity, and other inhumane and criminal acts against Ger-
man nationals and members of the civilian populations of
countries and territories under the belligerent occupation of,
or otherwise controlled by Germany. The defendants com-
mitted war crimes and crimes against humanity, in that they
were principals in, accessories to, ordered, abetted, took a con-
senting part in, were connected with plans and enterprises
involving, and were members of organizations and groups which
were connected with, the commission of war crimes and crimes
against humanity.”

The following paragraphs 60 to 82 set forth generally and
particularly the unlawful acts, such as enslavement of the popu-
lation, plunder of public and private property, murder, etc.,
and participation of the defendants in the formulation, distri-
bution and execution of these unlawful plans.

Count Four — Paragraphs 83 and 84, are as follows :

“83. All the defendants, with divers other persons, during a
period of years preceding 8 May 1945, participated as leaders,
organizers, instigators, and accomplices in the formulation and
execution of a common plan and conspiracy to commit, and
which involved the commission of crimes against peace (in-
cluding the acts constituting war crimes and crimes against
humanity, which were committed as an integral part of such
crimes against peace) as defined in Control Council Law Num-
ber 10, and are individually responsible for their own acts and
for all acts committed by any persons in the execution of such
common plan or conspiracy.

465

“84. The acts and conduct of the defendants set forth in
counts one, two and three of this indictment formed a part of
said common plan or conspiracy and all the allegations made in
said counts are incorporated in this count.”

The trial began 5 February 1948, and the prosecution’s case
was substantially completed on 5 March at which time a recess
was taken until 12 April 1948 to enable counsel to prepare their
defense, then resumed and completed on 13 August 1948. Each
defendant has been represented by German lawyers of his own
selection who have conducted the defense with great ability,
energy, and zeal.

A huge mass of evidence has been submitted in behalf of the
prosecution and defense. The trial was conducted in two lan-
guages — English and German — and all documents submitted were
duly translated and given counsel. The defense was also furnished
with photostat copies of the original captured documents.

The prosecution’s case, including those introduced on cross-
examination and rebuttal, was made in part by the introduction
of 1,778 documents, the vast majority of which were taken from
German records and documents captured by the Allied Armies.
The defendants complained that the context of many of these
documents was necessary to their proper understanding and
evaluation and that other documents would tend to explain or
refute any inference of criminality that might be drawn from
the documents relied upon by the prosecution. The defendants
requested that they be supplied with additional material for their
defense specified by them in their application. To this end the
Tribunal ordered the Secretary General to procure such thereof
as it was possible to procure, and as a result of this order there
were procured from Washington 1,503 document folders which
filled 37 footlockers. These the defense council and the de-
fendants were permitted to examine and they have used such
thereof as they deemed necessary in the presentation of their
case either as new evidence or to supplement and explain the
documents introduced by the prosecution.

The material used for such purpose by the defendants was
taken from 259 different document folders and comprised 2,058
pages which were photostated and used as exhibits in the case.
Such material was received at different times. The first shipment
from Washington was received on 10 April, and the last on 27
May 1948. The case was not closed for the taking of testimony
until 6 August 1948. In addition the defense counsel and the
defendants were allowed access to all of the captured records
and documents not yet sent over to the United States and still

466

stored in the Court Archives in Nuernberg for the purpose of
using such portions thereof as they might deem material. The
defendants introduced a total of 2,130 documents and affidavits
as exhibits in the presentation of their defense. The transcript
of the record contains 10,000 pages.

Insofar as lay within its power, the Tribunal directed and aided
in procuring all the witnesses that defense counsel requested, that
their testimony might be heard in open court.

One hundred sixty-five witnesses were ordered summoned for
the defendants. One hundred five of those summoned it was
possible to procure and they were brought to Nuernberg and
were available for the defendants to call to the witness stand.
Of these only 80 in fact were called by the defendants. That so
many of those requested were in fact procured is a tribute to the
efficiency and to the cooperation that the administrative officers
of the courthouse have rendered in this trial.

At many times during the progress of the case, counsel for
the defendants insisted there were many and damaging errors
made in the translations of the many documents offered in evi-
dence by the prosecution. The Tribunal repeatedly advised coun-
sel that if any errors had been made and were called to the
Tribunal’s attention, all efforts would be made to obtain a correct
translation.

In the closing statement Dr. Surholt, counsel for the defendant
General Reinecke, said:

“The documents must be properly translated, that is, the
American translation must convey to the Tribunal the sense of
the German text correctly and without omissions. This can-
not be said of any of the document books. The English text
in the hands of the Tribunal contains such a vast number of
mistakes that to correct even the essential points is a task
the defense is unable to cope with.

“The reviewing of the document books arranged by the
defense went as far as document books 1-9Q, which is about
half of the material. The number of mistakes so far estab-
lished amounts to 1,936.”

And then he gave a few examples of the supposed erroneous
translations.

Before the trial ended, the Tribunal again pointed out to counsel
the advisability of submitting lists of the translations questioned.
Dr. Frohwein, representing the defendant General Reinhardt, sub-
mitted a list consisting of thirty-one documents in which there
were claimed errors of translation. This list was handed over
to the prosecution which agreed to all of the contentions with the

exception of three which were left to the decision of the Tri-
bunal. Dr. Mueller-Torgow, for the defendant Hoth, submitted
to the Tribunal a list of eighteen documents containing erroneous
translations. All were agreed to by the prosecution.

Dr. Leverkuehn, representing the defendant Warlimont, sub-
mitted one item which was agreed to by the prosecution. Dr.
von Keller, representing the defendant Dr. Lehmann, submitted
a list consisting of twelve documents containing alleged errors,
all of which were corrected by agreement with the prosecution.

These were the only corrections submitted by any of the counsel
and many were of minor, if any, importance. For instance,
we notice in one spot there were deleted the words: “These
prisoners were shot on the spot after short interrogation.” And
there was substituted : “These prisoners are shot on the scene of
action after short interrogation”. At other points, the word
“partisan” is deleted and the word “franc-tireur” substituted.
In other places, the word “officials” was deleted and the word
“functionaries” substituted in lieu thereof. Other criticisms were
of more importance but this shows that many were more captious
than material.

Such errors and ambiguities as were material and were not
cleared up by agreement of counsel were poted and in accord-
ance with proper rules of criminal procedure, any doubts and
ambiguities are resolved in favor of the defendants.

A. Control Council Law No. 10. — The preamble to Control
Council Law No. 10 reads as follows :

“In order to give effect to the terms of the Moscow Declara-
tion of the 30 October 1943, and the London Agreement of
8 August 1945, and the Charter issued * *

I will repeat two lines.

“In order to give effect to the terms of the Moscow Declara-
tion of 30 October 1943 and the London Agreement of 8 August
1945, and the Charter issued pursuant thereto and in order to
establish a uniform legal basis in Germany for the prosecution
of war criminals and other similar offenders, other than those
dealt with by the International Military Tribunal, the Control
Council enacts as folows :

“Article I

“The Moscow Declaration of 30 October 1943 ‘Concerning
Responsibility of Hitlerites for Committed Atrocities’ and the
London Agreement of 8 August 1945. ‘Concerning Prosecution
and Punishment of Major War Criminals of the European
Axis’ are made integral parts of this Law. Adherence to the

468

provisions of the London Agreement by any of the United
Nations, as provided for in Article V of that Agreement, shall
not entitle such Nation to participate or interfere in the opera-
tion of this Law within the Control Council area of authority
in Germany.

“Article II

“1. Each of the following acts is recognized as a crime :

“ (a) Crimes against Peace. Initiation of invasions of other
countries and wars of aggression in violation of international
laws and treaties, including but not limited to planning, prep-
aration, initiation or waging a war of aggression, or a war in
violation of international treaties, agreements or assurances,
or participation in a common plan or conspiracy for the accom-
plishment of any of the foregoing.

“(b) War Crimes. Atrocities or offences against persons
or property constituting violations of the laws or customs of
war, including but not limited to, murder, ill treatment or de-
portation to slave labour or for any other purpose, of civilian
population from occupied territory, murder or ill treatment of
prisoners of war or persons on the seas, killing of hostages,
plunder of public or private property, wanton destruction of
cities, towns or villages, or devastation not justified by military
necessity.

“(c) Crimes against Humanity. Atrocities and offences, in-
cluding but not limited to murder, extermination, enslavement,
deportation, imprisonment, torture, rape, or other inhumane
acts committed against any civilian population, or persecutions
on political, racial or religious grounds whether or not in vio-
lation of the domestic laws of the country where perpetrated.

“(d) Membership in categories of a criminal group or or-
ganization declared criminal by the International Military
Tribunal.

“2. Any person without regard to nationality or the capacity
in which he acted, is deemed to have committed a crime as
defined in paragraph 1 of this Article, if he was (a) a principal
or (b) was an accessory to the commission of any such crime
or ordered or abetted the same or (c) took a consenting part
therein or (d) was connected with plans or enterprises involv-
ing its commission or (e) was a member of any organization
or group connected with the commission of any such crime or
(/) with reference to paragraph 1 (a), if he held a high
political, civil or military (including General Staff) position in
Germany or in one of its allies, co-belligerents or satellites or
held high position in the financial, industrial or economic life
of any such country.”

469

In the judgment rendered by the International Military Tri-
bunal it is said:*

“The jurisdiction of the Tribunal is defined in the Agree-
ment and Charter, and the crimes coming within the juris-
diction of the Tribunal, for which there shall be individual
responsibility, are set out in Article 6. The law of the Charter
is decisive, and binding upon the Tribunal.

“The making of the Charter was the exercise of the sovereign
legislative power by the countries to which the German Reich
unconditionally surrendered; and the undoubted right of these
countries to legislate for the occupied territories has been
recognized by the civilized world. The Charter is not an arbi-
trary exercise of power on the part of the victorious nations,
but in the view of the Tribunal, as will be shown, it is the
expression of international law existing at the time of its crea-
tion ; and to that extent is itself a contribution of international
law.

“The Signatory Powers created this Tribunal, defined the law
it was to administer, and made regulations for the proper con-
duct of the trial. In doing so, they have done together what
any one of them might have done singly; for it is not to be
doubted that any nation has the right thus to set up special
courts to administer law. With regard to the constitution of
the Court, all that the defendants are entitled to ask is to re-
ceive a fair trial on the facts and law.

“The Charter makes the planning or waging of a war of
aggression or a war in violation of international treaties a crime ;
and it is therefore not strictly necessary to consider whether
and to what extent aggressive war w r as a crime before the
execution of the London Agreement. But in view of the great
importance of the question of law involved, the Tribunal has
heard full argument from the prosecution and the defense, and
will express its view on the matter.

“It was urged on behalf of the defendants that a fundamental
principle of all law — international and domestic — is that there
can be no punishment of crime without a preexisting law.
‘Nullum crimen sine lege, nulla poena sine lege’ It was sub-
mitted that ex post facto punishment is abhorrent to the law of
all civilized nations, that no sovereign power had made aggres-
sive war a crime at the time that the alleged criminal acts
were committed, that no statute had defined aggressive war,
that no penalty had been fixed for its commission, and no
court had been created to try and punish offenders.

* Trial of the Major War Criminals. &p. ext. mpra , vol. I. pp. 218-224.

470

“In the first place, it is to be observed that the maxim
nullum crimen sine lege is not a limitation of sovereignty, but
is in general a principle of justice. To assert that it is unjust
to punish those who in defiance of treaties and assurances
have attacked neighboring states without warning is obviously
untrue, for in such circumstances the attacker must know that
he is doing wrong, and so far from it being unjust to punish
him, it would be unjust if his wrong were allowed to go un-
punished. Occupying the positions they did in the government
of Germany, the defendants or at least some of them must have
known of the treaties signed by Germany, outlawing recourse
to war for the settlement of international disputes; they must
have known that they were acting in defiance of all interna-
tional law when in complete deliberation they carried out their
designs of invasion and aggression. On this view of the case
alone, it would appear that the maxim has no application to
the present facts.

“This view is strongly reinforced by a consideration of the
state of international law in 1939, so far as aggressive war is
concerned. The General Treaty for the Renunciation of War of
27 August 1928, more generally known as the Pact of Paris
or the Kellogg-Briand Pact, was binding on 63 nations, includ-
ing Germany, Italy, and Japan at the outbreak of war in 1939.
In the preamble, the signatories declared that they were :

“ ‘Deeply sensible of their solemn duty to promote the welfare
of mankind; persuaded that the time has come when a frank
renunciation of war as an instrument of national policy should
be made to the end, that the peaceful and friendly relations now
existing between their peoples should be perpetuated ; * * * all
changes in their relations with one another should be sought
only by pacific means * * * thus uniting civilized nations of
the world in a common renunciation of war as an instrument
of their national policy * * V ”

The first two articles are as follows:

“ ‘Article I. The High Contracting Parties solemnly declare
in the names of their respective peoples that they condemn
recourse to war for the solution of international controversies
and renounce it as an instrument of national policy in their
relations to one another.

“ ‘Article II. The High Contracting Parties agree that the
settlement or solution of all disputes or conflicts of whatever
nature or whatever origin they may be, which may arise among
them, shall never be sought except by pacific means.’

“The question is what was the legal effect of this Pact? The
nations who signed the Pact or adhered to it unconditionally

471

condemned recourse to war for the future as an instrument of
policy, and expressly renounced it. After the signing of the
Pact, any nation resorting to war as an instrument of national
policy breaks the Pact. In the opinion of the Tribunal, the
solemn renunciation of war as an instrument of national policy
necessarily involves the proposition that such a war is illegal
in international law ; and that those who plan and wage such a
war, with its inevitable and terrible consequences, are com-
mitting a crime in so doing. War for the solution of interna-
tional controversies undertaken as an instrument of national
policy certainly includes a war of aggression, and such a war is
therefore outlawed by the Pact. As Mr. Henry L. Stimson,
then Secretary of State of the United States, said in 1932:

“ 'War between nations was renounced by the signatories of
the Kellogg-Briand Treaty. This means that it has become
throughout practically the entire world * * * an illegal thing.
Hereafter, when nations engage in armed conflict, either one or
both of them must be termed violators of this general treaty
law * * *. We denounce them as law breakers/

"But it is argued that the Pact does not expressly enact that
such wars are crimes, or set up courts to try those who make
such wars. To that extent the same is true with regard to the
laws of war contained in the Hague Convention. The Hague
Convention of 1907, prohibited resort to certain methods of
waging war. These included the inhumane treatment of pris-
oners, the employment of poisoned weapons, the improper use of
flags of truce, and similar matters. Many of these prohibitions
had been enforced long before the date of the Convention;
but since 1907, they have certainly been crimes punishable as
offenses against the laws of war; yet the Hague Convention
nowhere designates such practices as criminal, nor is any sen-
tence prescribed, nor any mention made of a court to try and
punish offenders. For many years past, however, military tri-
bunals have tried and punished individuals guilty of violating
the rules of land warfare laid down by this convention. In
the opinion of the Tribunal those who wage aggressive war are
doing that which is equally illegal, and of much greater moment
than a breach of one of the rules of the Hague Convention.
In interpreting the words of the Pact, it must be remembered
that international law is not the product of an international
legislature, and that such international agreements as the Pact
of Paris have to deal with general principles of law and not
with administrative matters of procedure. The law of war is
to be found not only in treaties, but in the customs and practices
of states which gradually obtained universal recognition, and

472

from the general principles of justice applied by jurists and
practiced by military courts. This law is not static, but by con-
tinual adaptation follows the needs of a changing world. In-
deed, in many cases treaties do no more than express and
define for more accurate reference the principles of law already
existing.

“The view which the Tribunal takes of the true interpretation
of the Pact is supported by the international history which
preceded it. In the year 1923, the draft of a Treaty of Mutual
Assistance was sponsored by the League of Nations. In Ar-
ticle I the Treaty declared ‘that aggressive war is an inter-
national crime’, and that the parties would ‘undertake that no
one of them will be guilty of its commission’. The draft treaty
was submitted to 29 states, about half of whom were in favor
of accepting the text. The principle objection appeared to be
in the difficulty of defining the acts which would constitute
‘aggression’, rather than any doubt as to the criminality of
aggressive war. The preamble to the League of Nations 1924,
Protocol for the Pacific Settlement of International Disputes
(‘Geneva Protocol’), after ‘recognizing the solidarity of the
members of the international community’, declared that ‘a war
of aggression constitutes a violation of this solidarity and is an
international crime.’ It went on to declare that the contracting
parties were ‘desirous of facilitating the complete application
of the system provided for in the Covenant of the League of
Nations for the pacific settlement of disputes between the states
and of ensuring the repression of international crimes.’ The
Protocol was recommended to the members of the League of
Nations by a unanimous resolution in the assembly of the 48
members of the League. These members included Italy and
Japan, but Germany was not then a member of the League.

“Although the Protocol was never ratified, it was signed by
the leading statesmen of the world, representing the vast
majority of the civilized states and peoples, and may be re-
garded as strong evidence of the intention to brand aggressive
war as an international crime.

“At the meeting of the Assembly of the League of Nations on
24 September 1927, all the delegations then present (including
the German, the Italian, and the Japanese), unanimously
adopted a declaration concerning wars of aggression. The
preamble to the declaration stated :

“ ‘The Assembly :

“ ‘Recognizing the solidarity which unites the community of
nations ;

473

Being inspired by a firm desire for the maintenance of
general peace;

Being convinced that a war of aggression can never serve as
a means of settling international disputes, and is in conse-
quence an international crime * * V

“The unanimous resolution of 18 February 1928, of 21
American republics at the Sixth (Havana) Pan-American Con-
ference, declared that, ‘war of aggression constitutes an inter-
national crime against the human species’.

“All these expressions of opinion, and others that could be
cited, so solemnly made, reinforce the construction which the
Tribunal placed upon the Pact of Paris, that resort to a war
of aggression is not merely illegal, but is criminal. The pro-
hibition of aggressive war demanded by the conscience of the
world, finds its expression in the series of pacts and treaties to
which the Tribunal has just referred.

“It is also important to remember that Article 227 of the
Treaty of Versailles provided for the constitution of a special
tribunal, composed of representatives of five of the Allied and
Associated Powers which had been belligerents in the First
World War opposed to Germany, to try the former German
Emperor, ‘for a supreme offense against international morality
and the sanctity of treaties.’ The purpose of this trial was
expressed to be, ‘to vindicate the solemn obligations of inter-
national undertakings, and the validity of international moral-
ity’. In Article 228 of the Treaty, the German Government
expressly recognized the right of the Allied Powers to bring
before military tribunals persons accused of having committed
acts in violation of the laws and customs of war.

“It was submitted that international law is concerned with
the actions of sovereign states, and provides no punishment
for individuals; and further, that where the act in question is
an act of state, those who carry it out are not personally re-
sponsible, but are protected by the doctrine of the sovereignty
of the state. In the opinion of the Tribunal, both these sub-
missions must be rejected. That international law imposes
duties and liabilities upon individuals as well as upon States
has long been recognized. In the recent case of ex parte
Quirin (1942 317 U.S. 1), before the Supreme Court of the
United States, persons were charged during the war with land-
ing in the United States for purposes of spying and sabotage.
The late Chief Justice Stone, speaking for the Court, said:

“ ‘From the very beginning of its history this Court has ap-
plied the law of war as including that part of the law of nations

474

which prescribes for the conduct of war, the status, rights, and
duties of enemy nations, as well as enemy individuals.'

“He went on to give a list of cases tried by the courts, where
individual offenders were charged with offenses against the
laws of nations, and particularly the laws of war. Many other
authorities could be cited, but enough has been said to show
that individuals can be punished for violations of interna-
tional law. Crimes against international law are committed
by men, not by abstract entities, and only by punishing indi-
viduals who commit such crimes can the provisions of inter-
national law be enforced.

“The provisions of Article 228 of the Treaty of Versailles
already referred to illustrate and enforce this view of individual
responsibility.

“The principle of international law, which, under certain
circumstances, protects the representatives of a state, cannot be
applied to acts which are condemned as criminal by inter-
national law. The authors of these acts cannot shelter them-
selves behind their official position in order to be freed from
punishment in appropriate proceedings. Article 7 of the
Charter expressly declares:

“ ‘The official position of defendants, whether as heads of
state, or responsible officials in government departments, shall
not be considered as freeing them from responsibility, or
mitigating punishment.’

“On the other hand the very essence of the Charter is that
individuals have international duties which transcend the na-
tional obligations of the obedience imposed by the individual
state. He who violates the laws of war cannot obtain immunity
while acting in pursuance of the authority of the state if the
state in authorizing action moves outside its competence under
international law.

“It was also submitted on behalf of most of these defendants
that in doing what they did they were acting under the orders
of Hitler, and therefore cannot be held responsible for the acts
committed by them in carrying out these orders. The Charter
specifically provides in Article 8:

“ ‘The fact that the defendant acted pursuant to order of
his Government or of a superior shall not free him from
responsibility, but may be considered in mitigation of punish-
ment.’

“The provisions of this article are in conformity with the
law of all nations. That a soldier was ordered to kill or torture
in violation of the international law of war has never been rec-
ognized as a defense to such acts of brutality, though, as the

803964—61 32

475

Charter here provides, the order may be urged in mitigation
of the punishment. The true test, which is found in varying
degrees in the criminal law of most nations, is not the existence
of the order, but whether moral choice was in fact possible.”

Here ends the quotation from the “Trial of the Major War
Criminals”.

This reasoning applies also to Control Council Law No. 10.
The same authority creating the London Agreement created this
Control Council law. As was said by Tribunal III in the Justice
Case: 1

“It can scarcely be argued that a court which owes its ex-
istence and jurisdiction solely to the provisions of a given
statute could assume to exercise that jurisdiction and then,
in the exercise thereof, declare invalid the act to which it owes
its existence. Except as an aid to construction we cannot and
need not go behind the statute.”

That is the end of the quotation.

The Charter, supplemented by Control Council Law No. 10, is
not an arbitrary exercise of power, but “it is the expression of
international law existing at the time of its creation; and to that
extent is itself a contribution to international law.” ( Judgment ,
IMT, supra.) As a matter of interest to students we might point
out that this general principle is sustained by the following extract
from Grotius, written in 1625 :

“It is proper also to observe that Kings and those who are
possessed of sovereign power have a right to exact punishment
not only for injuries affecting immediately themselves or their
own subjects, but for gross violations of the law of nature
and of nations, done to other states and subjects.” 2

We also refer to an article from the Manchester Guardian of
28 September 1946, containing a description of the trial of Sir
Peter of Hagenbach held at Breisach in 1474. The charges
against him were analogous to “Crimes against Humanity” in
modern concept. He was convicted.

However, these citations are of academic interest only, merely
given to show the soundness of the judgment of the IMT. We
think it may be said the basic law before mentioned simply de-
clared, developed, and implemented international common law.

1 United States vs. Josef Altstoetter, et al., Case No. 3, Vol. III.

2 Grotius, The Rights of War and Peace, translated from the Latin by A. C. Campbell, A.M.
(1901), M. Walter Dume, publisher, Washington and London, chap. XX, p. 247.

476

By so construing it, there is eliminated the assault made upon
it as being an ex post facto enactment.

Our view is fortified by the judgment rendered in Case No. 7,
United States vs. Wilhelm List, et al., where it is said (7V. p.
1048 A) :

“We conclude that preexisting international law has declared
the acts constituting the crimes herein charged and included
in Control Council Law No. 10 to be unlawful, both under the
conventional law and the practices and usages of land warfare
that had ripened into recognized customs which belligerents
were bound to obey. Anything in excess of existing interna-
tional law therein contained is a utilization of power and not
of law. It is true, of course, that courts authorized to hear such
cases were not established nor the penalties to be imposed for
the violations set forth. But this is not fatal to their validity.
The acts prohibited are without deterrent effect unless they
are punishable as crimes.” [Emphasis supplied]

Then there is quoted the language of the IMT heretofore 1 set
out in this opinion. (TV. p. 10,015.)

Many of the questions in the IMT case are presented in this
case. The same unlawful orders, acts, and practices are involved ;
only the defendants are different. Hitler was the very center of
vast expanding concentric rings of influence that touched every
person in Germany. The defendants in this case are only one or
two steps removed from Goering, Keitel, Jodi, Doenitz, and
Raeder, defendants in the IMT case. Much of the evidence intro-
duced in this case was introduced in the IMT hearing. Conse-
quently, the great importance of the judgment of that trial as
applying to the issues of law involved in this case, is readily
apparent.

The IMT judgment contains an elaborate account of Hitler’s
rise to power, the plans and acts of aggression, and the barbarities
and crimes perpetrated upon the armed forces and civilians of the
countries with which Germany was at war. In view of the fact
that these general findings are supported by the record in the
instant case, we shall make further liberal quotations from and
references to it in this judgment.

At this point Judge Harding will continue with the reading
of the judgment.

Judge Harding: B. International treaties. — In the judgment of
the International Military Tribunal it is said: 2

1 Sec pp. 472-473.

2 Trial of the Major War Criminals, op. cit. supra, vol. I, pp. 216-18.

477

“The Charter defines as a crime the planning or waging of
war that is a war of aggression or a war in violation of inter-
national treaties. The Tribunal has decided that certain of the
defendants planned and waged aggressive wars against 12
nations, and were therefore guilty of this series of crimes. This
makes it unnecessary to discuss the subject in further detail,
or even to consider at any length the extent to which these
aggressive wars were also, ‘wars in violation of international
treaties, agreements, or assurances’.

“These treaties are set out in Appendix C of the indictment.
Those of principal importance are the following.

“Hague Conventions

“In the 1899, Convention the signatory powers agreed: ‘be-
fore an appeal to arms * * * to have recourse, as far as circum-
stances allow, to the good offices or mediation of one or more
friendly powers.’ A similar clause was inserted in the Con-
vention for Pacific Settlement of International Disputes of
1907. In the accompanying Convention Relative to Opening of
Hostilities, Article I contains this far more specific language:
‘The Contracting Powers recognize that hostilities between them
must not commence without a previous and explicit warning,
in the form of either a declaration of war, giving reasons, or an
ultimatum with a conditional declaration of war.’ Germany
was a party to these conventions.

“Versailles Treaty

“Breaches of certain provisions of the Versailles Treaty are
also relied on by the prosecution — Not to fortify the left bank
of the Rhine (Articles 42-44) ; to, ‘respect strictly the inde-
pendence of Austria’, (Article 80) ; renunciation of any rights
in Memel (Article 99) and the Free City of Danzig (Article
100) ; the recognition of the independence of the Czechoslovak
State ; and the military, naval, and air clauses against German
rearmament found in part V. There is no doubt that action
was taken by the German Government contrary to all these
provisions, the details of which are set out in Appendix C.
With regard to the Treaty of Versailles, the matters relied on
are:

“1. The violation of Articles 42 to 44 in respect of the de-
militarized zone of the Rhineland;

“2. The annexation of Austria on 13 March 1938, in violation
of Article 80 ;

“3. The incorporation of the district of Memel on 22 March
1939, in violation of Article 99;

478

“4. The incorporation of the Free City of Danzig on 1 Sep-
tember 1939, in violation of Article 100;

“5. The incorporation of the provinces of Bohemia and
Moravia on 16 March 1939, in violation of Article 81 ;

“6. The repudiation of the military, naval, and air clauses of
the Treaty, in or about March of 1935.

“On 21 May 1935, Germany announced that, while renouncing
the disarmament clauses of the Treaty, she would still respect
the territorial limitations, and would comply with the Locarno
Pact. (With regard to the first five breaches alleged, therefore,
the Tribunal finds the allegation proved.)

“Treaties of Mutual Guarantee , Arbitration, and

Non- Aggression

“It is unnecessary to discuss in any detail the various treaties
entered into by Germany with other powers. Treaties of mutual
guarantee were signed by Germany at Locarno in 1925, with
Belgium, France, Great Britain, and Italy, assuring the main-
tenance of the territorial status quo. Arbitration treaties were
also executed by Germany at Locarno with Czechoslovakia,
Belgium, and Poland.

“Article I of the latter treaty is typical, providing: ‘All dis-
putes of every kind between Germany and Poland * * * which
it may not be possible to settle amicably by the normal methods
of diplomacy, shall be submitted for decision to an arbitral
tribunal * *

“Conventions of Arbitration and Conciliation were entered
into between Germany, The Netherlands, and Denmark in 1926 ;
and between Germany and Luxembourg in 1929. Non-aggres-
sion treaties were executed by Germany with Denmark and
Russia in 1939.

“Kellogg-Briand Pact

“The Pact of Paris was signed on 27 August 1928, by Ger-
many, the United States, Belgium, France, Great Britain, Italy,
Japan, Poland, and other countries; and subsequently by other
powers. The Tribunal has made full reference to the nature
of this Pact and its legal effect in another part of this judg-
ment. It is therefore not necessary to discuss the matter
further here, save to state that in the opinion of the Tribunal
this Pact was violated by Germany in all the cases of aggressive
war charged in the indictment. It is to be noted that on 26
January 1934, Germany signed a Declaration for the Main-
tenance of Permanent Peace with Poland, which was explicitly
based on the Pact of Paris, and in which the use of force was
outlawed for a period of 10 years.

479

“The Tribunal does not find it necessary to consider any of
the other treaties referred to in the Appendix or the repeated
agreements and assurances of her peaceful intentions entered
into by Germany/'

OBJECTIONS DURING THE TRIAL

The objection has been raised that this Tribunal is not a proper
forum in which to try the defendants for the crimes charged. It
is said that they were prisoners of war and that they are subject
to trial only by a general court martial. We find no merit in such
contention.

There is no doubt of the criminality of the acts with which the
defendants are charged. They are based on violations of inter-
national law well recognized and existing at the time of their
commission. True, no court had been set up for the trial of viola-
tions of international law. A state having enacted a criminal law
may set up one; or any number of courts and vest each with
jurisdiction to try an offender against its internal laws. Even
after the crime is charged to have been committed we know of
no principle of justice that would give the defendant a vested
right to a trial only in an existing forum. In the exercise of its
sovereignty the state has the right to set up a tribunal at any
time it sees fit and confer jurisdiction on it to try violators of its
criminal laws. The only obligation a sovereign state owes to the
violator of one of its laws is to give him a fair trial in a forum
where he may have counsel to represent him — where he may pro-
duce witnesses in his behalf, and where he may speak in his own
defense. Similarly, a defendant charged with a violation of inter-
national law is in no sense done an injustice if he is accorded
the same rights and privileges. The defendants in this case have
been accorded those rights and privileges.

As regards the contention that the defendants are prisoners of
war and that the Geneva Convention, Article 63, requires that a
prisoner of war be tried by a general court martial, we call atten-
tion to the fact that this provision referred to is found in an
international agreement, that was entered into, and to which both
the United States and Germany were signatories, to protect pris-
oners of war after they acquire such status and not to extend to
them any special privileges or prerogatives with respect to crimes
they may have committed before acquiring a prisoner of war
status. Such is the reasoning of the Yamashita Case (827 U.S.
1 ;66 Sup . Ct. 3U8). We think the reasoning sound.

Article 63 of the Geneva Convention provides :

“Sentence may be pronounced against a prisoner of war only

480

by the same courts and according to the same procedure as in
the case of persons belonging to the armed forces of the detain-
ing power.”

Therefore, say defense counsel, the defendants must be tried
by a general court martial since the defendants were prisoners
of war taken by the United States, and members in the armed
forces of the United States committing crimes are tryable by court
martial. But the trial of men in the military forces of the
United States by court martial can be only for crimes committed
after the accused acquires and during the time he possesses the
status of a member of the armed forces of the United States. One
who committed murder and thereby violated the law of the state
before he was inducted into the military service clearly could not
be tried for that crime by a court martial for violating articles
of war which did not apply to him when he committed the
murder.

Nor do we think it necessary that defendants be discharged
as prisoners of war before being brought to trial. Certainly if a
man is arrested for violating a municipal traffic ordinance which
subjects him only to a civil penalty in a magistrate’s court and
while he is in custody it is discovered that the day before he
committed a murder, there is no violation of any principle of
justice in holding him in custody and surrendering him to the
officers of a court that has competency to try him for murder.

We are not deciding whether the United States or France or
any other nation lawfully could or could not try the defendants
in a court martial for a violation of international law. That is
not before us. If that may be done, a court martial has not
exclusive jurisdiction.

The crimes including the war crimes charged against the de-
fendants are for violations of international criminal law. This
Tribunal by Control Council Law No. 10 is vested with authority
to try defendants for the crimes charged. That such jurisdiction
possibly may be exercised by another military court is also of no
consequence. If two courts have concurrent jurisdiction to try
the same case the first court that exercises jurisdiction may prop-
erly dispose of the case.

The IMT said:*

“The jurisdiction of the Tribunal is defined in the Agree-
ment and Charter, and the crimes coming within the jurisdic-
tion of the Tribunal, for which there shall be individual re-
sponsibility, are set out in Article 6. The law of the Charter
is decisive, and binding upon the Tribunal.

* * * * * * *

* Trial of the Major War Criminals, vol. I, pp. 218, 253.

481

“The Tribunal is of course bound by the Charter, in the
definition which it gives both of war crimes and crimes against
humanity.”

What was held by the IMT with respect to the London Agree-
ment and Charter, the basic laws under which it functioned, is
authority for a similar holding by this Tribunal with respect
to the basic law under which it was set up and under which it
functions.

We deem it unnecessary to discuss the objection that Control
Council Law No. 10 is in violation of the maxim nullum crimen
sine lege, nulla poena sine lege. We find it without merit. It has
been passed upon so many times by the Nuernberg Tribunals and
held without merit, that further comment here is unnecessary.

The further objection was made that one of the nations, namely,
the U.S.S.R., cooperated in the promulgation of Control Council
Law No. 10 after it had engaged in a war of aggression which
is made criminal under the law; this objection also is without
merit. The London Agreement and Charter from which Control
Council Law No. 10 stems has been approved by 19 nations other
than the four signatories thereto. We need not and do not deter-
mine whether the charge that one of the signatories of the London
Agreement and Charter and Control Council Law No. 10 is guilty
of aggressive war for such determination could avail the defend-
ants nothing. Under general principles of law, an accused does
not exculpate himself from a crime by showing that another com-
mitted a similar crime, either before or after the alleged com-
mission of the crime by the accused.

Various of the defendants by way of objection or motions have
raised the question of the sufficiency of the evidence on the part
of the prosecution to make out a prima facie case of the guilt
of the respective defendants. Numbers of these motions were
ruled upon during the course of the trial. As to such motions
not heretofore ruled upon, the same are denied, in as much as the
questions raised by such motions are involved in the final deter-
mination of the guilt or the innocence of the defendants.

CONSPIRACY COUNT

In view of the conclusions presently to be announced, we think
it proper now to dispose of this count.

We have heretofore set out paragraph 2 of Article II of Control
Council Law No. 10, which provides that any person who was an
accessory to the commission of crimes against peace, war crimes,
or crimes against humanity, as defined in said law by Article II,
paragraphs 1(a), ( b ), and (c), or who ordered or abetted such

482

offense, or took a consenting part therein, or who was connected
with any plans or enterprises involving its commission should be
deemed guilty of the commission of said offenses. It is difficult
to see, as the facts have developed in this case, how a conspiracy
charge can be of the slightest aid to the prosecution. If the
defendants committed the acts charged in this conspiracy count,
they are guilty of crimes charged under counts one, two, and
three and are punishable as principals.

The conspiracy count has not resulted in the introduction of
any evidence that is not admissible under the other counts, nor
does it, as the evidence has developed in this case, impose any
criminality not attached to a violation under such preceding
counts.

In as much as we hold that under the facts of this case no
separate substantive offense is shown under count four, we strike
it as tendering no issue not contained in the preceding counts,
and proceed to determine the guilt or innocence of the defendants
under counts one, two, and three of the indictment.

In so striking count four, we have reference only to the facts
as they have been presented in this case and express no opinion
as to whether in all cases and under all factual developments the
charge of conspiracy should be disregarded. Such determination
should depend upon the proof adduced in each case.

In this connection we desire to advert to the last paragraph of
paragraph 2, Article II, Control Council Law No. 10, viz, “or
(/) with reference to paragraph 1 (a), if he held a high political,
civil, or military (including General Staff) position * * * or held
high position in the financial, industrial, or economic life,” in
Germany, such person would be guilty under paragraph 1 (a) de-
fining crimes against peace.

The prosecution does not undertake to fix liability upon this
basis and we need not notice it further than to observe that
we may draw from any known facts such inferences as we deem
they warrant.

CONTROLLING PRINCIPLES IN TRIAL
The proper attitude to be observed in approaching a case of
the character of the one before the Tribunal is so well stated
by Judge Anderson in his concurring opinion in Case No. 10, the
United States vs. Alfried Krupp, et al., that we set it forth,
omitting only such portions as had particular application to that
case, as a statement of the principles that we deem controlling
in the approach to the instant case. Therein he said:

“There are certain matters of general application which must
be stated in the outset of this investigation. They must be

483

borne in mind throughout the discussion. The first is that this
Tribunal was created to administer the law. It is not a mani-
festation of the political power of the victorious belligerents
which is quite a different thing. The second is that the fact
that the defendants are alien enemies is to be resolutely kept
out of mind. The third is that considerations of policy are not
to influence a disposition of the questions presented. Of these
there are but two ; (a) what was the law at the time in question,
and, ( b ) does the evidence show prima facie that the defendants
or any of them violated it. The fourth is that the defendants
throughout are presumed to be innocent and before they can
be put to their defense, the prosecution must make out a
prima facie case of guilt by competent and relevant evidence.
It is true that the procedural ordinance of the Military Gov-
ernment for Germany (US) provides that, ‘they (the Tri-
bunals) shall adopt and apply to the greatest possible extent
* * * non-technical procedure.’ But neither the members of this
Tribunal nor the people of the nation prosecuting this case
regard the presumption of innocence as nothing more than a
technical rule of procedure. Nor do they, or we, think it a
mere rhetorical abstraction to which lip service will suffice.
Upon the contrary, in addition to its procedural consequences,
it is a substantive right which stands as a witness for every
defendant from the beginning to the end of his trial * * *.
The sixth is that it is a fundamental principle of criminal jus-
tice that criminal statutes are to be interpreted restrictively ;
that criminal responsibility is an individual matter ; that crim-
inal guilt must be personal. The seventh is that the applica-
tion of ex post facto laws in criminal cases constitutes a denial
of justice under international law (Quincy Wright: ‘The Law
of the Nuernberg Trial’, American Journal of International
Law, volume 41, January 1947, p. 53). Hence, if it be con-
ceded that Control Council Law No. 10 is binding on the
Tribunal, it nevertheless must be construed and applied to
the facts in a way which will not conflict with this view.”
( Case No . 10 , Concurring Opinion , mimeographed pp. 6-7.)

To the above we add that the burden rests upon the prosecution
to present evidence that satisfies the Tribunal of the guilt of the
defendants beyond a reasonable doubt. This rule also we have
adhered to in arriving at our judgment. Where there was am-
biguity in the testimony or uncertainty as to the defendants’
connection with the transactions relied upon to establish their
guilt, we have followed the well-recognized principle of criminal
law and have accorded to the defendants the benefit of the doubt.

484

COUNT ONE OF THE INDICTMENT-AGGRESSIVE WAR

Count one of the indictment, heretofore set out, charges the
defendants with crimes against peace.

Before seeking to determine the law applicable it is necessary
to determine with certainty the action which the defendants are
alleged to have taken that constitutes the crime. As a preliminary
to that we deem it necessary to give a brief consideration to the
nature and characteristics of war. We need not attempt a defini-
tion that is all-inclusive and all-exclusive. It is sufficient to say
that war is the exerting of violence by one state or politically
organized body against another. In other words, it is the imple-
mentation of a political policy by means of violence. Wars are
contests by force between political units but the policy that brings
about their initiation is made and the actual waging of them is
done by individuals. What we have said thus far is equally as
applicable to a just as to an unjust war, to the initiation of an
aggressive and, therefore, criminal war as to the waging of a
defensive and, therefore, legitimate war against criminal aggres-
sion. The point we stress is that war activity is the implemen-
tation of a predetermined national policy.

Likewise, an invasion of one state by another is the implemen-
tation of the national policy of the invading state by force even
though the invaded state, due to fear or a sense of the futility
of resistance in the face of superior force, adopts a policy of
nonresistance and thus prevents the occurrence of any actual
combat.

In the light of this general characterization and definition of
war and invasions we now consider the charge contained in the
indictment. The essence of the charge is participation in the
initiation of aggressive invasions and in the planning, preparation,
and waging of aggressive wars. The remaining parts of para-
graph 1 are merely a statement of particular actions which are
sufficient to constitute a commission of the crime charged. Para-
graph 2 charges that the defendants were principals, or acces-
sories to, or were in other ways involved in, the commission of
the previously charged crimes against peace. These are charges
as to the nature of their relationship to the crime otherwise
charged in the indictment, and add no new element to the crim-
inality charged in paragraph 1. The reference in paragraph 2 to
the high military positions formerly held by the defendants has
relevance in the indictment and in the law (Control Council Law
No. 10, Art. II, par. 2), not to show or charge additional crimes
against peace, but to show what persons may be included and what

485

persons may not be excluded from being charged and convicted
of the offense set forth in paragraph 1 (a).

The prosecution does not seek, or contend that the law author-
izes, a conviction of the defendants simply by reason of their
positions as shown by the evidence, but it contends only that such
positions may be considered by the Tribunal with all other evi-
dence in the case for such light as they may shed on the personal
guilt or innocence of the individual defendants. The prosecution
does contend, and we think the contention sound, that the defend-
ants are not relieved of responsibility for action which would
be criminal in one who held no military position, simply by
reason of their military positions. This is the clear holding of the
judgment of the IMT, and is so provided in Control Council
Law No. 10, Article II, paragraph 4 (a).

The initiation of war or an invasion is a unilateral operation.
When war is formally declared or the first shot is fired the initia-
tion of the war has ended and from then on there is a waging of
war between the two adversaries. Whether a war be lawful,
or aggressive and therefore unlawful under international law, is
and can be determined only from a consideration of the factors
that entered into its initiation. In the intent and purpose for
w r hich it is planned, prepared, initiated and waged is to be found
its lawfulness or unlawfulness.

As we have pointed out, war whether it be lawful or unlawful
is the implementation of a national policy. If the policy under
which it is initiated is criminal in its intent and purpose it is so
because the individuals at the policy-making level had a criminal
intent and purpose in determining the policy. If war is the means
by which the criminal objective is to be attained then the waging
of the war is but an implementation of the policy, and the crim-
inality which attaches to the waging of an aggressive war should
be confined to those who participate in it at the policy level.

This does not mean that the Tribunal subscribes to the con-
tention made in this trial that since Hitler was the Dictator of
the Third Reich and that he was supreme in both the civil and
military fields, he alone must bear criminal responsibility for
political and military policies. No matter how absolute his
authority, Hitler alone could not formulate a policy of aggressive
war and alone implement that policy by preparing, planning, and
waging such a war. Somewhere between the Dictator and Su-
preme Commander of the Military Forces of the nation and the
common soldier is the boundary between the criminal and the
excusable participation in the waging of an aggressive war by
an individual engaged in it. Control Council Law No. 10 does
not definitely draw such a line.

486

It points out in paragraph 2 of Article II certain fact situations
and established relations that are or may be sufficient to constitute
guilt and sets forth certain categories of activity that do not
establish immunity from criminality. Since there has been no
other prosecution under Control Council Law No. 10 with defend-
ants in the same category as those in this case, no such definite
line has been judicially drawn. This Tribunal is not required to
fix a general rule but only to determine the guilt or innocence of
the present defendants.

The judgment of the IMT held that:*

“The Charter is not an arbitrary exercise of power on the part
of the victorious nations, but in view of the Tribunal, as will
be shown, it is the expression of international law existing at
the time of its creation ; and to that extent is itself a contribu-
tion to international law.”

We hold that Control Council Law No. 10 likewise is but an
expression of international law existing at the time of its creation.
We cannot therefore construe it as extending the international
common law as it existed at the time of the Charter to add thereto
any new element of criminality, for so to do would give it an ex
post facto effect which we do not construe it to have intended.
Moreover, that this was not intended is indicated by the fact that
the London Charter of 8 August 1945, is made an integral part
of the Control Council Law.

Since international common law grows out of the common
reactions and the composite thinking with respect to recurring
situations by the various states composing the family of nations,
it is pertinent to consider the general attitude of the citizens of
states with respect to their military commanders and their obli-
gations when their nations plan, prepare for and initiate or
engage in war.

While it is undoubtedly true that international common law in
case of conflict with state law takes precedence over it and while
it is equally true that absolute unanimity among all the states in
the family of nations is not required to bring an international
common law into being, it is scarcely a tenable proposition that
international common law will run counter to the consensus within
any considerable number of nations.

Furthermore, we must not confuse idealistic objectives with
realities. The world has not arrived at a state of civilization
such that it can dispense with fleets, armies, and air forces, nor
has it arrived at a point where it can safely outlaw war under

* Trial of the Major War Criminals, op. cit. supra, vol. I, p. 218.

487

any and all circumstances and situations. In as much as all war
cannot be considered outlawed then armed forces are lawful in-
strumentalities of state, which have internationally legitimate
functions. An unlawful war of aggression connotes of necessity
a lawful war of defense against aggression. There is no general
criterion under international common law for determining the
extent to which a nation may arm and prepare for war. As long
as there is no aggressive intent, there is no evil inherent in a
nation making itself militarily strong. An example is Switzerland
which for her geographical extent, her population and resources
is proportionally stronger militarily than many nations of the
world. She uses her military strength to implement a national
policy that seeks peace and to maintain her borders against
aggression.

There have been nations that have initiated and waged aggressive
wars through long periods of history, doubtless there are nations
still disposed to do so; and if not, judging in the light of history,
there may be nations which tomorrow will be disposed so to do. Fur-
thermore, situations may arise in which the question whether the
war is or is not aggressive is doubtful and uncertain. We may safely
assume that the general and considered opinions of the people
within states — the source from which international common law
springs are not such as to hamper or render them impotent to do
the things they deem necessary for their national protection.

We are of the opinion that as in ordinary criminal cases, so in
the crime denominated aggressive war, the same elements must all
be present to constitute criminality. There first must be actual
knowledge that an aggressive war is intended and that if launched
it will be an aggressive war. But mere knowledge is not sufficient
to make participation even by high ranking military officers in
the war criminal. It requires in addition that the possessor of
such knowledge, after he acquires it shall be in a position to shape
or influence the policy that brings about its initiation or it continu-
ance after initiation, either by furthering, or by hindering or pre-
venting it. If he then does the former, he becomes criminally
responsible ; if he does the latter to the extent of his ability, then
his action shows the lack of criminal intent with respect to such
policy.

If a defendant did not know that the planning and preparation
for invasions and wars in which he was involved were concrete
plans and preparations for aggressive wars and for wars other-
wise in violation of international laws and treaties, then he cannot
be guilty of an offense. If, however, after the policy to initiate
and wage aggressive wars was formulated, a defendant came into
possession of knowledge that the invasions and wars to be waged,

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were aggressive and unlawful, then he will be criminally respon-
sible if he, being on the policy level, could have influenced such
policy and failed to do so.

If and as long as a member of the armed forces does not par-
ticipate in the preparation, planning, initiating, or waging of
aggressive war on a policy level, his war activities do not fall
under the definition of crimes against peace. It is not a person's
rank or status, but his power to shape or influence the policy of his
state, which is the relevant issue for determining his criminality
under the charge of crimes against peace.

International law condemns those who, due to their actual
power to shape and influence the policy of their nation, prepare
for, or lead their country into or in an aggressive war. But we
do not find that, at the present stage of development, international
law declares as criminals those below that level who, in the exe-
cution of this war policy, act as the instruments of the policy
makers. Anybody who is on the policy level and participates in
the war policy is liable to punishment. But those under them
cannot be punished for the crimes of others. The misdeed of the
policy makers is all the greater in as much as they use the great
mass of the soldiers and officers to carry out an international
crime; however, the individual soldier or officer below the policy
level is but the policy makers' instrument, finding himself, as
he does, under the rigid discipline which is necessary for and
peculiar to military organization.

We do not hesitate to state that it would have been eminently
desirable had the commanders of the German armed forces refused
to implement the policy of the Third Reich by means of aggressive
war. It would have been creditable to them not to contribute to
the cataclysmic catastrophe. This would have been the honorable
and righteous thing to do; it would have been in the interest of
their State. Had they done so they would have served their
fatherland and humanity also.

But however much their failure is morally reprimandable, we
are of the opinion and hold that international common law, at the
time they so acted, had not developed to the point of making the
participation of military officers below the policy making or policy
influencing level into a criminal offense in and of itself.

International law operates as a restriction and limitation on
the sovereignty of nations. It may also limit the obligations
which individuals owe to their states, and create for them inter-
national obligations which are binding upon them to an extent that
they must be carried out even if to do so violates a positive law
or directive of state. But the limitation which international com-
mon law imposes on national sovereignty, or on individual obliga-

489

tions, is a limitation self-imposed or imposed by the composite
thinking in the international community, for it is by such demo-
cratic processes that common law comes into being. If there is
no generality of opinion among the nations of the world as to a
particular restriction on national sovereignty or on the obliga-
tions of individuals toward their own state, then there is no
international common law on such matter.

By the Kellogg-Briand Pact 63 nations, including Germany,
renounced war as an instrument of national policy. If this, as we
believe it is, is evidence of a sufficient crystallization of world
opinion to authorize a judicial finding that there exist crimes
against peace under international common law, we cannot find that
law to extend further than such evidence indicates. The nations
that entered into the Kellogg-Briand Pact considered it imperative
that existing international relationships should not be changed
by force. In the preamble they state that they are :

“Persuaded that the time has come when * * * all changes in
their relationships with one another should be sought only by
pacific means * * *.”

This is a declaration that from that time forward each of the
signatory nations should be deemed to possess and to have the
right to exercise all the privileges and powers of a sovereign
nation within the limitations of international law, free from all
interference by force on the part of any other nation. As a corol-
lary to this, the changing or attempting to change the international
relationships by force of arms is an act of aggression and if the
aggression results in war, the war is an aggressive war. It is,
therefore, aggressive war that is renounced by the pact. It is
aggressive war that is criminal under international law.

The crime denounced by the law is the use of war as an instru-
ment of national policy. Those who commit the crime are those
who participate at the policy making level in planning, preparing,
or in initiating war. After war is initiated, and is being waged,
the policy question then involved becomes one of extending, con-
tinuing or discontinuing the war. The crime at this stage likewise
must be committed at the policy making level.

The making of a national policy is essentially political, though
it may require, and of necessity does require, if war is to be one
element of that policy, a consideration of matters military as well
as matters political.

It is self-evident that national policies are made by man. When
men make a policy that is criminal under international law, they
are criminally responsible for so doing. This is the logical and
inescapable conclusion.

490

The acts of commanders and staff officers below the policy level,
in planning campaigns, preparing means for carrying them out,
moving against a country on orders and fighting a war after it
has been instituted, do not constitute the planning, preparation,
initiation, and waging of war or the initiation of invasion that
international law denounces as criminal.

Under the record we find the defendants were not on the policy
level, and are not guilty under count one of the indictment. With
crimes charged to have been committed by them in the manner in
which they behaved in the waging of war, we deal in other parts
of this judgment.

WAR CRIMES AND CRIMES AGAINST HUMANITY

In the judgment of the International Military Tribunal on pages
226 - 232 , et seq.*, is a statement of the war crimes committed by
the Wehrmacht. Extracts from this are as follows:

“The evidence relating to war crimes has been overwhelming,
in its volume and its detail. It is impossible for this judgment
adequately to review it, or to record the mass of documentary
and oral evidence that has been presented. The truth remains
that war crimes were committed on a vast scale never before
seen in the history of war. They were perpetrated in all the
countries occupied by Germany, and on the high seas, and were
attended by every conceivable circumstance of cruelty and hor-
ror. There can be no doubt that the majority of them arose
from the Nazi conception of, ‘total war’, with which the aggres-
sive wars were waged. For in this conception of, ‘total war’,
the moral ideas underlying the conventions which seek to make
war more humane are no longer regarded as having force or
validity. Everything is made subordinate to the overmastering
dictates of war. Rules, regulations, assurances, and treaties
all alike are of no moment; and so, freed from the restraining
influence of international law, the aggressive war is conducted
by the Nazi leaders in the most barbaric way. Accordingly, war
crimes were committed when and wherever the Fuehrer and
his close associates thought them to be advantageous. They
were for the most part the result of cold and criminal cal-
culation.

* % * Hs ❖ $ ❖

“Other war crimes, such as the murder of prisoners of war
who had escaped and been recaptured, or the murder of com-
mandos or captured airmen, or the destruction of the Soviet

* Trial of Major War Criminals, op. cit. supra, vol, I.

893964—51 33

491

Commissars, were the result of direct orders circulated through
the highest official channels * * *.

“Prisoners of war were ill-treated and tortured and murdered,
not only in defiance of the well established rules of international
law, but in complete disregard of the elementary dictates of
humanity.

*******

“In the course of the war, many Allied soldiers who had
surrendered to the Germans were shot immediately, often as a
matter of deliberate, calculated policy. On 18 October 1942 ,
the defendant Keitel circulated a directive authorized by Hitler,
which ordered that all members of Allied ‘commando' units,
often when in uniform and whether armed or not, were to be
‘slaughtered to the last man', even if they attempted to sur-
render. It was further provided that if such Allied troops came
into the hands of the military authorities after being first cap-
tured by the local police, or in any other way, they should be
handed over immediately to the SD. This order was supple-
mented from time to time, and was effective throughout the
remainder of the war, although after the Allied landings in Nor-
mandy in 1944 , it was made clear that the order did not apply
to ‘commandos' captured within the immediate battle area.
Under the provisions of this order, Allied ‘commando' troops,
and other military units operating independently, lost their lives
in Norway, France, Czechoslovakia, and Italy. Many of them
were killed on the spot, and in no case were those who were
executed later in concentration camps ever given a trial of any
kind.

*******

“In March 1944, the OKH issued the ‘Kugel', or, ‘Bullet'
decree, which directed that every escaped officer and NCO pris-
oner of war who had not been put to work, with the exception
of British and American prisoners of war, should on recapture
be handed over to the SIPO and SD. This order was distrib-
uted by the SIPO and SD to their regional offices. These
escaped officers and NCO's were to be sent to the concentration
camp at Mauthausen, to be executed upon arrival, by means of
a bullet shot in the neck.

“In March 1944, fifty officers of the British Royal Air Force,
who escaped from the camp at Sagan where they were confined
as prisoners, were shot on recapture, on the direct orders of
Hitler. Their bodies were immediately cremated, and the urns
containing their ashes were returned to the camp. It was not

492

contended by the defendants that this was other than plain
murder, in complete violation of international law.

“When Allied airmen were forced to land in Germany, they
were sometimes killed at once by the civilian population. The
police were instructed not to interfere with these killings, and
the Ministry of Justice was informed that no one should be
prosecuted for taking part in them.

“The treatment of Soviet prisoners of war was characterized
by particular inhumanity. The death of so many of them was
not due merely to the action of individual guards, or to the
exigencies of life in the camps. It was the result of systematic
plans to murder. More than a month before the German in-
vasion of the Soviet Union, the OKW was making special plans
for dealing with political representatives serving with the Soviet
Armed Forces who might be captured. One proposal was that
‘political commissars of the army are not recognized as prisoners
of war, and are to be liquidated at the latest in the transient
prisoner of war camps.’ The defendant Keitel gave evidence
that instructions incorporating this proposal were issued to the
German Army.

“On 8 September 1941, regulations for the treatment of Soviet
prisoners of war in all prisoner of war camps were issued,
signed by General Reinecke, the head of the prisoner of war
department of the High Command. Those orders stated:

“ ‘The Bolshevist soldier has therefore lost all claim to treat-
ment as an honorable opponent, in accordance with the Geneva
Convention * * * The order for ruthless and energetic action
must be given at the slightest indication of insubordination,
especially in the case of Bolshevist fanatics. Insubordination,
active or passive resistance, must be broken immediately by
force of arms (bayonets, butts, and firearms) * * * Anyone
carrying out the order who does not use his weapons, or does
so with insufficient energy, is punishable * * *. Prisoners of
war attempting escape are to be fired on without previous
challenge. No warning shot must ever be fired * * *. The use
of arms against prisoners of war is as a rule legal.’

“The Soviet prisoners of war were left without suitable cloth-
ing ; the wounded without medical care ; they were starved, and
in many cases left to die.

“On 17 July 1941, the Gestapo issued an order providing for
the killing of all Soviet prisoners of war who were or might be
dangerous to national socialism. The order recited :

“ ‘The mission of the commanders of the SIPO and SD sta-
tioned in Stalags is the political investigation of all camp in-
mates, the elimination and further, ‘treatment’, (a) of all politi-

493

cal, criminal, or in some other way unbearable elements among
them, (6) of those persons who could be used for the recon-
struction of the occupied territories * * *. Further, the com-
manders must make efforts from the beginning to seek out
among the prisoners elements which appear reliable, regardless
of whether there are Communists concerned or not, in order to
use them for intelligence purposes inside of the camp, and, if
advisable, later in the occupied territories also. By use of such
informers, and by use of all other existing possibilities, the
discovery of all elements to be eliminated among the prisoners
must proceed step by step at once * * V

“ ‘Above all, the following must be discovered : all important
functionaries of State and Party, especially professional revolu-
tionaries * * * all People’s Commissars of the Red Army, lead-
ing personalities of the State * * *, leading personalities of the
business world, members of the Soviet Russian intelligence, all
Jews, all persons who are found to be agitators or fanatical
Communists. Executions are not to be held in the camp or in
the immediate vicinity of the camp * * *. The prisoners are
to be taken for special treatment if possible into the former
Soviet Russian territory.’

“The affidavit of Warlimont, Deputy Chief of Staff of the
Wehrmacht, and the testimony of Ohlendorf, former Chief of
Amt III of the RSHA, and of Lahousen, the head of one of the
sections of the Abwehr, the Wehrmacht’s intelligence service,
all indicate the thoroughness with which this order was carried
out.

*******

“In some cases Soviet prisoners of war were branded with a
special permanent mark. There was put in evidence the
OKW order dated 20 July 1942, which laid down that:

“ ‘The brand is to take the shape of an acute angle of about
45 degrees, with the long side to be 1 cm. in length, pointing
upwards and burnt on the left buttock * * *. This brand is
made with the aid of a lancet available in any military unit.
The coloring used is Chinese ink.’

“The carrying out of this order was the responsibility of the
military authorities, though it was widely circulated by the
chief of the SIPO and SD to German police officials for
information.

“Soviet prisoners of war were also made the subject of med-
ical experiments of the most cruel and inhuman kind. In July
1943, experimental work was begun in preparation for a cam-
paign of bacteriological warfare ; Soviet prisoners of war were

494

used in these medical experiments, which more often than not
proved fatal * * *.

“The argument in defense of the charge with regard to the
murder and ill-treatment of Soviet prisoners of war, that the
U. S. S. R. was not a party to the Geneva Convention, is quite
without foundation. On 15 September 1941, Admiral Canaris
protested against the regulations for the treatment of Soviet
prisoners of war, signed by General Reinecke on 8 September
1941. He then stated:

“ ‘The Geneva Convention for the treatment of prisoners of
war is not binding in the relationship between Germany and
the U. S. S. R. Therefore only the principles of general inter-
national law on the treatment of prisoners of war apply. Since
the 18th century these have gradually been established along
the lines that war captivity is neither revenge nor punishment,
but solely protective custody, the only purpose of which is to
prevent the prisoners of war from further participation in the
war. This principle was developed in accordance with the view
held by all armies that it is contrary to military tradition to kill
or injure helpless people * * *. The decrees for the treatment
of Soviet prisoners of war enclosed are based on a fundamentally
different viewpoint.’

“This protest, which correctly stated the legal position, was
ignored. The defendant Keitel made a note on this memo-
randum :

“ ‘The objections arise from the military concept of chivalrous
warfare. This is the destruction of an ideology. Therefore
I approve and back the measures.’ ”

All of these unlawful acts, as well as employment under inhu-
mane conditions and at prohibited labor, is shown by the record
in this case. They were deliberate, gross and continued violations
of the customs and usages of war as well as the Hague Regula-
tions (1907) and the Geneva Convention (1929) and of interna-
tional common law.

CRIMES AGAINST CIVILIANS

The record in the instant case is replete with horror. Never in
the history of man’s inhumanity to man have so many innocent
people suffered so much.

Millions of people whose only offense was that they were of
Jewish blood, or Soviet nationals, or gypsies, or Poles, designated
as social inferiors, subhumans, and beasts, received what the Hit-
lerites called “special treatment”, or “liquidation”, or “final solu-
tion” and were exterminated regardless of age or sex. No nation,

495

no army, and its leaders of any time, civilized or uncivilized, labor
under so great a load of guilt as do Hitler's Germany, its army
and its leaders in their treatment of these unfortunate people.

In addition, the civilian population of the countries overrun by
German arms were enslaved, deported for forced labor, starved,
tortured, murdered, executed as hostages and, by way of reprisal,
were compelled to erect fortifications and remove live mines; their
property, public and private, was plundered and destroyed, and they
suffered other crimes at the hands of their conquerors.

In the IMT judgment it is said:*

"Article 6(6) of the Charter provides that, ‘ill-treatment

* * * of civilian population of or in occupied territory * * *
killing of hostages * * * wanton destruction of cities, towns, or
villages,' shall be a war crime. In the main, these provisions
are merely declaratory of the existing laws of war as expressed
by the Hague Convention, Article 46, which stated: ‘Family
honor and rights, the lives of persons and private property, as
well as religious convictions and practice must be respected.'

"The territories occupied by Germany were administered in
violation of the laws of war. The evidence is quite overwhelm-
ing of a systematic rule of violence, brutality, and terror. On
7 December 1941, Hitler issued the directive since known as
‘Nacht und Nebel Erlass' (Night and Fog Decree), under which
persons who committed offenses against the Reich or the Ger-
man forces in occupied territories, except where the death sen-
tence was certain, were to be taken secretly to Germany and
handed over to the SIPO and SD for trial or punishment in
Germany. This decree was signed by the defendant Keitel.
After these civilians arrived in Germany, no word of them was
permitted to reach the country from which they came, or their
relatives ; even in cases when they died awaiting trial the fam-
ilies were not informed, the purpose being to create anxiety in
the minds of the family of the arrested person. Hitler's pur-
pose in issuing this decree was stated by the defendant Keitel
in a covering letter, dated 12 December 1941, to be as follows:

" ‘Efficient and enduring intimidation can only be achieved
either by capital punishment or by measures by which the rela-
tives of the criminal and the population do not know the fate
of the criminal. This aim is achieved when the criminal is
transferred to Germany.'

"Even persons who were only suspected of opposing any of
the policies of the German occupation authorities were arrested,
and on arrest were interrogated by the Gestapo and the SD in

* Trial of the Major War Criminals, op. cit. supra,, vol. I, pp. 232-238.

496

the most shameful manner. On 12 June 1942, the chief of the
SIPO and SD published, through Mueller, the Gestapo Chief, an
order authorizing the use of ‘third degree’ methods of interro-
gation, where preliminary investigation had indicated that the
person could give information on important matters, such as
subversive activities, though not for the purpose of extorting
confessions of the prisoner’s own crimes.”

This order provided :

“* * * Third degree may, under this supposition, only be
employed against Communists, Marxists, Jehovah’s Witnesses,
saboteurs, terrorists, members of resistance movements, para-
chute agents, antisocial elements, Polish or Soviet Russian loaf-
ers, or tramps; in all other cases my permission must first be
obtained * * *. Third degree can, according to circumstances,
consist among other methods of very simple diet (bread and
water), hard bunk, dark cell, deprivation of sleep, exhaustive
drilling, also in flogging (for more than twenty strokes a doctor
must be consulted)’.

“The brutal suppression of all opposition to the German occu-
pation was not confined to severe measures against suspected
members of resistance movements themselves, but also extended
to their families. On 19 July 1944, the commander of the SIPO
and SD in the district of Radom, in Poland, published an order,
transmitted through the Higher SS and Police Leaders, to the
effect that in all cases of assassination or attempted assassina-
tion of Germans, or where saboteurs had destroyed vital instal-
lations, not only the guilty person, but also all his or her male
relatives should be shot, and female relatives over 16 years of
age put into a concentration camp.

* * * * * * *

“The practice of keeping hostages to prevent and to punish
any form of civil disorder was resorted to by the Germans; an
order issued by the defendant Keitel on 16 September 1941,
spoke in terms of fifty or a hundred lives from the occupied
areas of the Soviet Union for one German life taken. The order
stated that ‘it should be remembered that a human life in unset-
tled countries frequently counts for nothing, and a deterrent
effect can be obtained only by unusual severity.’ The exact
number of persons killed as a result of this policy is not known,
but large numbers were killed in France and the other occupied
territories in the West, while in the East the slaughter was on
an even more extensive scale. In addition to the killing of
hostages, entire towns were destroyed in some cases; such
massacres as those of Oradour-sur-Glane in France and Lidice

497

in Czechoslovakia, both of which were described to the Tribunal
in detail, are examples of the organized use of terror by the
occupying forces to beat down and destroy all opposition to their
rule.

“One of the most notorious means of terrorizing the people
in occupied territories was the use of concentration camps.
They were first established in Germany at the moment of the
seizure of power by the Nazi Government. Their original pur-
pose was to imprison without trial all those persons who were
opposed to the government, or who were in any way obnoxious
to German authority. With the aid of a secret police force,
this practice was widely extended, and in course of time concen-
tration camps became places of organized and systematic mur-
der, where millions of people were destroyed.

“In the administration of the occupied territories the concen-
tration camps were used to destroy all opposition groups. The
persons arrested by the Gestapo were as a rule sent to concen-
tration camps. They were conveyed to the camps in many cases
without any care whatever being taken for them, and great
numbers died on the way. These who arrived at the camp were
subject to systematic cruelty. They were given hard physical
labor; inadequate food, clothes, and shelter; and were subject
at all times to the rigors of a soulless regime, and the private
whims of individual guards.

*******

“A certain number of the concentration camps were equipped
with gas chambers for the wholesale destruction of the inmates,
and with furnaces for the burning of the bodies. Some of them
were in fact used for the extermination of Jews as part of the
‘final solution’ of the Jewish problem. Most of the non-Jewish
inmates were used for labor, although the conditions under
which they worked made labor and death almost synonymous
terms. Those inmates who became ill and were unable to work
were either destroyed in the gas chambers or sent to special
infirmaries, where they were given entirely inadequate medical
treatment, worse food if possible than the working inmates,
and left to die.

“The murder and ill-treatment of civilian populations reached
its height in the treatment of the citizens of the Soviet Union
and Poland. Some 4 weeks before the invasion of Russia began,
special task forces of the SIPO and SD, called Einsatz Groups
[Einsatzgruppen], were formed on the orders of Himmler for
the purpose of following the German Armies into Russia, com-
bating partisans and members of resistance groups, and exter-

498

minating the Jews, and Communist leaders, and other sections
of the population. In the beginning, four such Einsatz groups
were formed, one operating in the Baltic States, one toward
Moscow, one towards Kiev, and one operating in the south of
Russia. Ohlendorf, former Chief of Amt III of the RSHA, who
led the fourth group, stated in his affidavit :

“ ‘When the German Army invaded Russia, I was leader of
Einsatzgruppe D, in the southern sector, and in the course of
the year during which I was leader of the Einsatzgruppe D it
liquidated approximately 90,000 men, women, and children.
The majority of those liquidated were Jews, but there were also
among them some Communist functionaries.’

“In an order issued by the defendant Keitel on 23 July 1941
and drafted by the defendant Jodi, it was stated that:

“ ‘In view of the vast size of the occupied areas in the East,
the forces available for establishing security in these areas will
be sufficient only if all resistance is punished, not by legal prose-
cution of the guilty, but by the spreading of such terror by
the armed forces as is alone appropriate to eradicate every
inclination to resist among the population * * *. Commanders
must find the means of keeping order by applying suitable
Draconian measures.’

“The evidence has shown that this order was ruthlessly car-
ried out in the territory of the Soviet Union and in Poland. A
significant illustration of the measures actually applied occurs
in the document which was sent in 1943 to the defendant Rosen-
berg by the Reich Commissar for Eastern Territories, who wrote :
“ ‘It should be possible to avoid atrocities and to bury those
who have been liquidated. To lock men, women, and children
into barns and set fire to them does not appear to be a suitable
method of combating bands, even if it is desired to exterminate
the population. This method is not worthy of the German cause,
and hurts our reputation severely.’

* * * Us * * *

“The foregoing crimes against the civilian population are suf-
ficiently appalling, and yet the evidence shows that at any rate
in the East, the mass murders and cruelties were not committed
solely for the purpose of stamping out opposition or resistance
to the German occupying forces. In Poland and the Soviet
Union these crimes were part of a plan to get rid of whole
native populations by expulsion and annihilation, in order that
their territory could be used for colonization by Germans.
Hitler had written in Mein Kampf on these lines, and the plan
was clearly stated by Himmler in July 1942, when he wrote:

499

‘It is not our task to Germanize the East in the old sense, that
is to teach the people there the German language and the Ger-
man law, but to see to it that only people of purely Germanic
blood live in the East.’

“In August of 1942, the policy for the eastern territories
as laid down by Bormann was summarized by a subordinate of
Rosenberg as follows :

“ ‘The Slavs are to work for us. In so far as we do not need
them, they may die. Therefore, compulsory vaccination and
Germanic health services are superfluous. The fertility of the
Slavs is undesirable.’ It was Himmler again who stated in
October 1943:

“ ‘What happens to a Russian, a Czech, does not interest
me in the slightest. What the nations can offer in the way of
good blood of our type, we will take. If necessary, by kidnap-
ing their children and raising them here with us. Whether
nations live in prosperity or starve to death interests me only
in so far as we need them as slaves for our Kultur, otherwise
it is of no interest to me.’

“In Poland the intelligentsia had been marked down for
extermination as early as September 1939, and in May 1940,
the defendant Frank wrote in his diary of ‘taking advantage of
the focussing of world interest on the western front, by whole-
sale liquidation of thousands of Poles, first leading representa-
tives of the Polish intelligentsia’. Earlier, Frank had been di-
rected to reduce the ‘entire Polish economy to an absolute mini-
mum necessary for bare existence. The Poles shall be the slaves
of the Greater German World Empire.’ In January 1940, he
recorded in his diary that ‘cheap labor must be removed from
the Government General by hundreds of thousands. This will
hamper the native biological propagation.’ So successfully did
the Germans carry out this policy in Poland that by the end of
the war one third of the population had been killed, and the
whole of the country devastated.

“It was the same story in the occupied area of the Soviet
Union. At the time of the launching of the German attack in
June 1941, Rosenberg told his collaborators :

“ ‘The object of feeding the German people stands this year
without a doubt at the top of the list of Germany’s claims on
the East, and there the southern territories and the northern
Caucasus will have to serve as a balance for the feeding of the
German people * * *. A very extensive evacuation will be nec-
essary, without any doubt, and it is sure that the future will
hold very hard years in store for the Russians.’ ”

500

These findings of the IMT are sustained by the record in this
case, and other offenses are shown as well.

The connection of the defendants with these offenses is disposed
of in our discussion of the individual cases.

Presiding Judge Young: Judge Hale will continue with the
reading of the judgment.

GERMAN MILITARY SYSTEM

Judge Hale: Soon after Hitler came to power, an Air Ministry
was established with Goering as the Minister. In 1935, the Ger-
man Government openly denounced the military, naval, and air
clauses of the Treaty of Versailles. At the same time, it was
announced that Germany was building a military air force. The
Reichswehr Ministry was renamed the “War Ministry”, and the
Minister, von Blomberg, assumed the title “Commander in Chief
of the Armed Forces”. Subordinate to von Blomberg were the
Commanders in Chief of the Army (von Fritsch) and of the Navy
(Raeder) . In his capacity as Commander in Chief of the German
Air Force, Goering was also subordinate to von Blomberg, but in
his capacity as Minister for Air, he was of coequal cabinet rank
and, needless to say, Goering was a very much more powerful
figure in the Third Reich.

In February 1938, a crisis in the relations between Hitler and
the army led to a drastic reorganization of the High Command.
In place of the Ministry of War, over-all control and coordination
of the three services was achieved through the newly created
Armed Forces High Command ( Oberkommando der Wehrmacht,
known as “OKW”). Hitler himself assumed the title Commander
in Chief of the Armed Forces”, and the OKW was, in essence,
Hitler’s working staff for armed forces matters. Keitel was given
the title “Chief” of the OKW and the rank of Minister. Von
Brauchitsch replaced von Fritsch as Commander in Chief of the
Army.

A. The OKW (Oberkommando der Wehrmacht) — Supreme
Command of the Armed Forces

The OKW controlled all matters of inter-service policy. It was
responsible for preparations for national defense in time of peace,
and for the over-all conduct of operations during war. Directly
under Hitler, Keitel served as Hitler’s highest executive officer in
the administration of the armed forces and in the application of
Hitler’s policies and plans.

There has been considerable testimony in the case relative to the
powers of the OKW and to the effect that Hitler frequently oper-
ated directly through the commanders in chief of the OKH, the

501

OKL, and the OKM and obviously after he assumed command of
the OKH, he, in many instances, operated directly as commander in
chief of the OKH. It is nevertheless apparent that Hitler, through
exercise of his functions as the Supreme Commander of the OKW,
could, and in many instances did, exercise through the OKW the
over-all command of the three branches of the armed services.

The most important section of the OKW, directly concerned with
operations in the field, etc., was called the Armed Forces Opera-
tions Staff (Wehrmachtfuehrungsstab or WFSt). This was
headed during the war by General Alfred Jodi. Jodi’s immediate
subordinate was the defendant, Warlimont, as Chief of Department
National Defense (Landesverteidigung-L) in the Armed Forces
Operations Staff. In addition, in January 1942, Warlimont was
appointed Jodi’s deputy with the title of Deputy Chief of the
Armed Forces Operations Staff.

Besides the WFSt, there were numerous additional branches
and sections within the OKW, all headed by senior officers, experts
in their own fields, who were directly responsible to Keitel. How-
ever, these branches were mostly with the rear echelon (as distin-
guished from the WFSt, which usually was with the Fuehrer
Headquarters in the “field”), and dealt with numerous adminis-
trative matters of joint interest to the three branches of the
armed forces.

The General Armed Forces Office (Allgemeines Wehrmachtamt-
AWA) was one of the principal administrative agencies within
the OKW. The chief of this office was the defendant Reinecke
who held this position continuously from December 1939 until
May 1945. The primary responsibilities of this office were admin-
istrative and executive rather than operational.

One of the most important sections of AWA was the Office of
the Chief of Prisoner of War Affairs (Chef des Kriegsgefangen-
enwesens — Chef Kriegsgef) which was in administrative charge
of all matters relating both to German and Allied prisoners of
war. The Office of the Chief of Prisoner of War Affairs re-
mained a part of the General Armed Forces Office (AWA) until
October 1944, at which time many functions of this office were trans-
ferred to SS supervision. Another section of AWA was the
National Socialist Guidance Staff of the OKW (Nationalsozialist-
ischer Fuehrungsstab des OKW — NSF/OKW), established in De-
cember 1943. This agency was to insure uniform political indoc-
trination in the armed forces in cooperation with the Nazi Party
Chancellery. This office was placed under the direct control of the
defendant Reinecke.

Another important branch of the OKW was the Armed Forces
Legal Department (Wehrmachtrechtsabteilung — WR). From

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502

1938 until 1945, it was headed by the defendant Lehmann. The
Legal Department was charged with certain legal matters in the
preparation of legal opinions of interest to all three branches of
the armed forces, but the legal staffs of the three forces were not
subordinate to him.

B. The OKL (Oberkommando der Luftwaffe) — High
Command of the Air Force

The air force was the youngest of the three branches comprising
the German armed forces. The creation of the German Air Force
occurred officially in March 1935, and Goering was appointed as
its commander in chief with the rank of air force general. Shortly
after the announcement of the creation of an independent air
force, all antiaircraft artillery and attached signal units were
taken over from the army by the air force. Goering served in

I the dual capacity of Minister of Aviation (Reichsminister der
Luftfahrt) and Commander in Chief of the German air force
(Oberbefehlshaber der Luftwaffe) and continued to head the air
force until shortly before the end of the war.

C. The OKM (Oberkommando der Kriegsmarine) —

High Command of the Navy

The navy was the smallest of the services, and its personnel and
units were numerically the smallest within the German armed
forces. From 1928 until 1943, the OKM was headed by Admiral
of the Fleet Erich Raeder. From 1943 to the end of the war in
May 1945, Admiral of the Fleet Doenitz, succeeding Raeder, was
Commander in Chief of the German Navy, having previously been
in charge of its most important weapon, the submarine.

Within the OKM, performing functions somewhat analogous
to the general staff of OKH, was the Naval War Staff (Seekriegs-
leitung-SKL) directly subordinate to the Commander in Chief of
the Navy. It concerned itself mostly with operational and intelli-
gence questions. Between the years 1938 and 1941, the defendant
Schniewind was the Chief of Staff of the SKL, directly responsible
to Raeder.

Under the OKM, the Naval Group Commands (Marinegruppen
Befehlshaber) controlled all naval operations in a given sector,
with the exception of the operations of the High Sea Fleet and the
submarines, which by their very nature were too mobile to be
restricted to a given area command. Between 1941 and 1944, the
defendant Schniewind was commander of the High Sea Fleet.

503

D. The OKH (Oberkommando des Heeres) —

High Command of the Army

The army was by far the largest and most important of the
three branches of the Wehrmacht. From 1938 until December 1941,
Field Marshal Walter von Brauchitsch was Commander in Chief
of the German Army with General Franz Haider as his Chief of
Staff. In December 1941, Hitler relieved von Brauchitsch of his
assignment and himself took over command of the German army.
Hitler retained his position as Commander in Chief of the German
Army until his presumed death at the end of the war; and the
result of unification of command, whereby Hitler was Supreme
Commander in Chief of the German armed forces and Commander
in Chief of the German Army, was a partial merger and over-
lapping of the functions of the OKW and OKH. In September
1942, Haider was relieved as Chief of Staff by General Kurt
Zeitzler. Colonel General Heinz Guderian replaced Zeitzler in
July 1944 and himself gave way to General Hans Krebs in Feb-
ruary 1945.

After Hitler himself took command of the German Army, the
highest field and occupational headquarters of the German Army
were directly under Hitler, either in his capacity as Supreme Com-
mander of the Wehrmacht, or in his capacity as Commander in
Chief of the Army. Because of the partial merger arising from
Hitler’s dual capacity and command functions, it became difficult
at times to delineate clearly between the responsibilities of the
OKW and those of the OKH.

E. Army Field Headquarters

Army groups and armies — The largest field formation in the
German Army was known as an army group, which was a head-
quarters controlling two or more armies. An army group was
customarily commanded by a Generalfeldmarschall (five-star gen-
eral), or more rarely by a Generaloberst (four-star general). An
army might be commanded by a Generalfeldmarschall, a General-
oberst, or a General (three-star general).

At the beginning of the war, an army group headquarters was
usually formed for a particular campaign or occupational theater.
During actual operations, the principal purpose of an army group
was to exercise operational command over the armies subordinated
to it. It had at first a relatively small staff devoted purely to
operational matters. As the war progressed, administrative func-
tions were added and its staff increased. An army headquarters
was a more permanent command framework. In addition to its
operational and tactical control of subordinate units, the army

was the top field headquarters for matters of administration,
supply, and other functions.

Corps and lower headquarters — An army controlled one or
more (usually between two and seven) corps. The corps was a
permanent headquarters which controlled as a rule from two to
seven divisions. The division was the basic “self-contained” unit
of the German Army and its structure varied according to its type.

Headquarters staff organization — The size and structure of an
army headquarters varied to a considerable extent. All head-
quarters were, however, organized according to a uniform system
and consisted basically of a commanding officer assisted by a staff.
The stafFs of corps and higher headquarters were headed by a
chief of staff. At all German headquarters, the staff officer in
charge of operations was known as “la”, the chief supply officer
as “lb”, and the chief intelligence officer as “Ic”.

SS Field formations ( Waffen SS) — When the war broke out
in 1939, Himmler commenced the formation into divisions of units
of the SS, armed and trained for employment with the army.
Only two or three such divisions were formed prior to the Rus-
sian campaign, but by the end of the war there were many SS
divisions.

For certain administrative purposes, the Waffen SS units re-
mained part of the SS and under the control and command of
Himmler as Reichsfuehrer SS. However, for operational purposes
in combat and in occupied areas, the SS divisions were under the
command of the army, and their employment differed little from
that of the regular divisions of the army.

F. Occupational Headquarters and Units —

Armed Forces Commander

In a territory occupied by German forces, the Germans some-
times found it desirable to appoint a senior over-all commander
to whom the heads of the army, navy, and air force in the terri-
tory were all tactically responsible. Such commanders had stra-
tegic as well as administrative responsibility and were directly
responsible to OKW.

Military commander — In German-occupied territory, the ad-
ministration of the area in conformity with rules and policies laid
down by the German authorities was entrusted to an army officer,
usually a general, who was designated as military commander
(Militaerbefehlshaber) . The military commanders had the pri-
mary mission of insuring security and order within the region or
country that they were responsible for, including the protection
of roads, railroads, supply lines, and communications.

Rear area commanders — During wartime the operational area

505

of the army (Heer) was divided into various segments. The oper-
ational area of an army (Armee) consisted of the combat zone and
an army rear area. The operational area of an army group con-
sisted of the operational areas of the armies under it and an army
group rear area. The boundaries of the army group rear area
coincided with the boundaries of the army rear areas and extended
to the territory under civil administration of the Reich, such as
the Commissariat Ostland in the East.

The army group and army rear areas were commanded by gen-
eral officers who were directly responsible to the commander in
chief of the army group or army, respectively. The missions with
which these commanders were charged can be summarized as
follows :

1. Administration of the occupied area.

2. The maintenance of peace and order in these areas.

3. Responsibility for the security of the railroads and main
supply routes leading to the front line, as well as for all supply
agencies engaged on behalf of the front line troops.

In order to accomplish these missions, these commanders often
had one or several of the following units at their disposal :

1. Security divisions (Sicherungsdivisionen).

2. Units of the German police.

3. Indigenous police and constabulary forces recruited from
the native population.

4. Special security battalions (Landesschuetzenbataillone).

For the administration of the civilian population, the following

subordinate headquarters were usually organized in an army or
army group rear area :

1. District main headquarters (Oberfeldkommandanturen).

2. Sub-district headquarters (Feldkommandanturen) .

3. Sub-district detachments (Ortskommandanturen).

In addition to these, numerous special staffs were at the disposal
of the commanders of the rear areas, which were charged with
such tasks as supervision over agricultural output, forestry serv-
ice, mining, and industrial utilization.

The commanders of army rear areas were generally called
“Koruecks” (Kommandeur des rueckwaertigen Armeegebietes).
The commanders of army group rear areas were known as “Eefehls-
haber des rueckwaertigen Heeresgebietes ,, , and they often carried
after their titles the numerical designation identifying the army
group rear area for administrative purposes. Thus, the defendant
von Roques was known as the Commander of Army Group Rear
Area 103 (South).

Higher SS and Police Leaders — During the course of the Nazi
regime, Heinrich Himmler succeeded in bringing about an almost

506

complete merger of the regular German police forces with the
police and intelligence components of the SS. This merger was
reflected in Himmler’s own title — Leader of the SS and Chief of
the German Police (Reichsfuehrer SS and Chef der Deutschen
Polizei). Thereafter, Himmler designated various of his sub-
ordinates to head the SS and police activities in specified areas of
Germany and in German occupied territory. An individual thus
designated was called a “Higher SS and Police Leader” (Hoeherer
SS-und Polizeifuehrer, usually abbreviated HSSPF). In the
occupied territories, the HSSPF’s continued to be personally re-
sponsible to Himmler and had constant instructions from him, but
they were, for operational purposes, responsible to the senior mili-
tary commander stationed in that territory. The principal func-
tions of the HSSPF’s were to control the local police authorities,
handle special police and intelligence matters, and carry out
other special missions of a security nature for Himmler and for
the military authorities. A HSSPF usually held the rank of
Gruppenfuehrer or Obergruppenfuehrer in the SS, these ranks
being respectively the equivalent of a two-star and a three-star
general in the United States Army.

We now pass to superior orders.

SUPERIOR ORDERS

Control Council Law No. 10, Article II, paragraphs 4 (a) and
(b), provides:

“4 (a) The official position of any person, whether as Head
of State or as a responsible official in a Government Depart-
ment, does not free him from responsibility for a crime or entitle
him to mitigation of punishment.

“(b) The fact that any person acted pursuant to the order of
his Government or of a superior does not free him from re-
sponsibility for a crime, but may be considered in mitigation.”

These two paragraphs are clear and definite. They relate to the
crimes defined in Control Council Law No. 10, Article II, para-
graphs 1(a), (b) , and (c). All of the defendants in this case
held official positions in the armed forces of the Third Reich. Hit-
ler from 1938 on was Commander in Chief of the Armed Forces
and was the supreme civil and military authority in the Third Reich,
whose personal decrees had the force and effect of law. Under
such circumstances to recognize as a defense to the crimes set
forth in Control Council No. 10 that a defendant acted pursuant
to the order of his government or of a superior would be in prac-
' : cal effect to say that all the guilt charged in the indictment was
the guilt of Hitler alone because he alone possessed the law-making

893964—51 34

507

power of the state and the supreme authority to issue civil and
military directives. To recognize such a contention would be to
recognize an absurdity.

It is not necessary to support the provision of Control Council
Law No. 10, Article II, paragraphs 4(a) and (6), by reason, for
we are bound by it as one of the basic authorities under which
we function as a judicial tribunal. Reason is not lacking.

In as much as one of the reiterated arguments advanced is
the injustice of even charging these defendants with being guilty
of the crimes set forth in the indictment, when they were, it is
said, merely soldiers and acted under governmental directives and
superior orders which they were bound to obey, we shall briefly
note what we consider sound reasons for the rejection of such a
defense.

The rejection of the defense of superior orders without its being
incorporated in Control Council Law No. 10 that such defense
shall not exculpate would follow of necessity from our holding
that the acts set forth in Control Council Law No. 10 are criminal
not because they are therein set forth as crimes but because they
then were crimes under international common law. International
common law must be superior to and, where it conflicts with, take
precedence over national law or directives issued by any national
governmental authority. A directive to violate international crim-
inal common law is therefore void and can afford no protection to
one who violates such law in reliance on such a directive.

The purpose and effect of all law, national or international, is
to restrict or channelize the action of the citizen or subject. Inter-
national law has for its purpose and effect the restricting and
channelizing of the action of nations. Since nations are corporate
entities, a composite of a multitude of human beings, and since
a nation can plan and act only through its agents and representa-
tives, there can be no effective restriction or channelizing of na-
tional action except through control of the agents and representa-
tives of the nation, who form its policies and carry them out in
action.

The state being but an inanimate corporate entity or concept, it
cannot as such make plans, determine policies, exercise judgment,
experience fear, or be restrained or deterred from action except
through its animate agents and representatives. It would be an
utter disregard of reality and but legal shadow-boxing to say that
only the state, the inanimate entity, can have guilt, and that no
guilt can be attributed to its animate agents who devise and exe-
cute its policies. Nor can it be permitted even in a dictatorship
that the dictator, absolute though he may be, shall be the scapegoat
on whom the sins of all his governmental and military subordi-

508

nates are wished ; and that, when he is driven into a bunker and
presumably destroyed, all the sins and guilt of his subordinates
shall be considered to have been destroyed with him.

The defendants in this case who received obviously criminal
orders were placed in a difficult position, but servile compliance
with orders clearly criminal for fear of some disadvantage or
punishment not immediately threatened cannot be recognized as
a defense. To establish the defense of coercion or necessity in the
face of danger there must be a showing of circumstances such
that a reasonable man would apprehend that he was in such immi-
nent physical peril as to deprive him of freedom to choose the
right and refrain from the wrong. No such situation has been
shown in this case.

Furthermore, it is not a new concept that superior orders are
no defense for criminal action. Article 47 of the German Military
Penal Code, adopted in 1872, was as follows:

“If through the execution of an order pertaining to the
service [Dienstsachen], a penal law is violated, then the supe-
rior giving the order is alone responsible. However, the obeying
subordinate shall be punished as accomplice [Teilnehmer] :
(1) if he went beyond the order given to him, or (2) if he knew
that the order of the superior concerned an act which aimed at
a civil or military crime or offense.”

The amendment of this in 1940 omitted the last two words “to
him” in paragraph (1) above, and in paragraph (2) changed the
words “civil or military crime or offense” to “general or military
crime or offense.” If this amendment had any effect, it extended
rather than restricted the scope of the preceding act.

It is interesting to note that an article by Goebbels, the Reich
Propaganda Minister, which appeared in the “Voelkischer Beo-
bachter”, the official Nazi publication, on 28 May 1944, contained
the following correct statement of the law :

“It is not provided in any military law that a soldier in the
case of a despicable crime is exempt from punishment because
he passes the responsibility to his superior, especially if the
orders of the latter are in evident contradiction to all human
morality and every international usage of warfare.”

ORDERS

A question of general interest to the various defendants in this
case involves the criminal responsibility for drafting, transmit-
ting, and implementing illegal orders of their superiors.

For the first time in history individuals are called upon to

509

answer criminally for certain violations of international law.
Individual criminal responsibility has been known, accepted, and
applied heretofore as to certain offenses against international law,
but the Nuernberg trials have extended that individual responsi-
bility beyond those specific and somewhat limited fields.

This Tribunal is therefore charged not only to determine whether
certain acts infringe international law, but also whether crim-
inal responsibility attaches to an individual for such infringe-
ment, and we must look not only to the international law itself
but to fundamental principles of criminal law as generally ac-
cepted by the civilized nations of the world for determination of
that question. Such has been the principle applied by the Tri-
bunals which have preceded us and we conform to that standard.
For a defendant to be held criminally responsible, there must be
a breach of some moral obligation fixed by international law, a
personal act voluntarily done with knowledge of its inherent
criminality under international law.

Control Council Law No. 10 [Article II, paragraph 4(5)] pro-
vides that:

“The fact that any person acted pursuant to the order of his
government or of a superior does not free him from responsi-
bility of a crime, but may be considered in mitigation.”

It is urged that a commander becomes responsible for the trans-
mittal in any manner whatsoever of a criminal order. Such a con-
clusion this Tribunal considers too far-reaching. The transmittal
through the chain of command constitutes an implementation of
an order. Such orders carry the authoritative weight of the supe-
rior who issues them and of the subordinate commanders who pass
them on for compliance. The mere intermediate administrative
function of transmitting an order directed by a superior authority
to subordinate units, however, is not considered to amount to such
implementation by the commander through whose headquarters
such orders pass. Such transmittal is a routine function which
in many instances would be handled by the staff of the commander
without being called to his attention. The commander is not in
a position to screen orders so transmitted. His headquarters, as
an implementing agency, has been bypassed by the superior
command.

Furthermore, a distinction must be drawn as to the nature of
a criminal order itself. Orders are the basis upon which any
army operates. It is basic to the discipline of an army that orders
are issued to be carried out. Its discipline is built upon this prin-
ciple. Without it, no army can be effective and it is certainly
not incumbent upon a soldier in a subordinate position to screen

510

the orders of superiors for questionable points of legality. Within
certain limitations, he has the right to assume that the orders of
his superiors and the state which he serves and which are issued
to him are in conformity with international law.

Many of the defendants here were field commanders and were
charged with heavy responsibilities in active combat. Their legal
facilities were limited. They were soldiers — not lawyers. Mili-
tary commanders in the field with far reaching military responsi-
bilities cannot be charged under international law with criminal
participation in issuing orders which are not obviously criminal
or which they are not shown to have known to be criminal under
international law. Such a commander cannot be expected to draw
fine distinctions and conclusions as to legality in connection with
orders issued by his superiors. He has the right to presume, in
the absence of specific knowledge to the contrary, that the legality
of such orders has been properly determined before their issuance.
He cannot be held criminally responsible for a mere error in judg-
ment as to disputable legal questions.

It is therefore considered that to find a field commander crim-

I inally responsible for the transmittal of such an order, he must
have passed the order to the chain of command and the order
must be one that is criminal upon its face, or one which he is
shown to have known was criminal.

While, as stated, a commanding officer can be criminally re-

} sponsible for implementing an illegal order of his superiors, the
question arises as to whether or not he becomes responsible for
actions committed within his command pursuant to criminal
orders passed down independent of him. The choices which he
has for opposition in this case are few: (1) he can issue an order
countermanding the order; (2) he can resign; (3) he can sabo-
tage the enforcement of the order within a somewhat limited

I sphere.

As to countermanding the order of his superiors, he has no
legal status or power. A countermanding order would not only
subject him to the severest punishment, but would be utterly
futile and in Germany, it would undoubtedly have focussed the
eyes of Hitler on its rigorous enforcement.

His second choice — resignation — was not much better. Resig-
nation in wartime is not a privilege generally accorded to officers
in an army. This is true in the Army of the United States.
Disagreement with a state policy as expressed by an order affords
slight grounds for resignation. In Germany, under Hitler, to
assert such a ground for resignation probably would have entailed
the most serious consequences for an officer.

Another field of opposition was to sabotage the order. This

511

he could do only verbally by personal contacts. Such verbal
repudiation could never be of sufficient scope to annul its enforce-
ment.

A fourth decision he could make was to do nothing.

Control Council Law No. 10, Article II, paragraph 2, pro-
vides in pertinent part as follows:

“Any person without regard to nationality or the capacity
in which he acted, is deemed to have committed a crime as de-
fined in paragraph 1 of this article, if he * * * (6) was an
accessory to the commission of any such crime or ordered or
abetted the same or (c) took a consenting part therein or (d)
was connected with plans or enterprises involving its commis-
sion * * *.” [Emphasis supplied.]

As heretofore stated, his “connection” is construed as requiring
a personal breach of a moral obligation. Viewed from an inter-
national standpoint, such has been the interpretation of preceding
Tribunals. This connection may however be negative. Under
basic principles of command authority and responsibility, an
officer who merely stands by while his subordinates execute a
criminal order of his superiors which he knows is criminal vio-
lates a moral obligation under international law. By doing
nothing he cannot wash his hands of international responsibility.
His only defense lies in the fact that the order was from a
superior which Control Council Law No. 10 declares constitutes
only a mitigating circumstance.

In any event in determining the criminal responsibility of the
defendants in this case, it becomes necessary to determine not
only the criminality of an order in itself but also as to whether
or not such an order was criminal on its face. Certain orders
of the Wehrmacht and the German army were obviously criminal.
No legal opinion was necessary to determine the illegality of such
orders. By any standard of civilized nations they were contrary
to the customs of war and accepted standard of humanity. Any
commanding officer of normal intelligence must see and under-
stand their criminal nature. Any participation in implementing
such orders, tacit or otherwise, any silent acquiescence in their
enforcement by his subordinates, constitutes a criminal act on
his part.

There has also been much evidence and discussion in this case
concerning the duties and responsibilities of staff officers in
connection with the preparation and transmittal of illegal orders.
In regard to the responsibility of the chief of staff of a field
command, the finding of Tribunal V in Case No. 7 as to certain
defendants has been brought to the attention of the Tribunal.

512

It is pointed out that the decision as to chiefs of staff in that
case was a factual determination and constitutes a legal deter-
mination only insofar as it pertains to the particular facts therein
I involved. We adopt as sound law the finding therein made,
but we do not give that finding the scope that is urged by defense
counsel in this case to the effect that all criminal acts within a
command are the sole responsibility of the commanding general
and that his chief of staff is absolved from all criminal respons-
I ibility merely by reason of the fact that his commanding general
may be charged with responsibility therefor. It is further pointed
out that the facts in that case are not applicable to any defendant
on trial in this case.

The testimony of various defendants in this case as to the
functions of staff officers and chiefs of staff has not been entirely
consistent. Commanding generals on trial have pointed out that
there were certain functions which they necessarily left to the
chiefs of staff and that at times they did not know of orders
which might be issued under authority of their command. Staff
officers on trial have urged that a commanding officer was solely
responsible for what was done in his name. Both contentions
are subject to some scrutiny.

In regard to the functions of staff officers in general as derived
from various documents and the testimony of witnesses, it is
established that the duties and functions of such officers in the
German Army did not differ widely from the duties and functions
in other armies of the world. Ideas and general directives must
be translated into properly prepared orders if they are to become
effective in a military organization. To prepare orders is the
function of staff officers. Staff officers are an indispensable link
in the chain of their final execution. If the basic idea is criminal
under international law, the staff officer who puts that idea into
the form of a military order, either himself or through sub-
ordinates under him, or takes personal action to see that it is
properly distributed to those units where it becomes effective,
commits a criminal act under international law.

Staff officers, except in limited fields, are not endowed with
command authority. Subordinate staff officers normally function
through the chiefs of staff. The chief of staff in any command
is the closest officer, officially at least, to the commanding officer.
It is his function to see that the wishes of his commanding officer
are carried out. It is his duty to keep his commanding officer
informed of the activities which take place within the field of
his command. It is his function to see that the commanding
officer is relieved of certain details and routine matters, that a
policy having been announced, the methods and procedures for

513

carrying out such policy are properly executed. His sphere and
personal activities vary according to the nature and interests
of his commanding officer and increase in scope dependent upon
the position and responsibilities of such commander.

Since a chief of staff does not have command authority in the
chain of command, an order over his own signature does not have
authority for subordinates in the chain of command. As shown
by the record in this case, however, he signs orders for and by
order of his commanding officer. In practice, a commanding
officer may or may not have seen these orders. However, they are
presumed to express the wishes of the commanding officer. While
the commanding officer may not and frequently does not see these
orders, in the normal process of command he is informed of them
and they are presumed to represent his will unless repudiated by
him. A failure to properly exercise command authority is not the
responsibility of a chief of staff.

In the absence of participation in criminal orders or their execu-
tion within a command, a chief of staff does not become crim-
inally responsible for criminal acts occurring therein. He has no
command authority over subordinate units. All he can do in such
cases is call those matters to the attention of his commanding
general. Command authority and responsibility for its exercise
rest definitely upon his commander.

Under normal military procedure a commanding officer signs
communications to higher commanders. He also in certain cases
signs orders to subordinates which are considered to establish
basic policy or whose importance he wishes to emphasize; but
the majority of orders issued in a command, as shown by the
record, are issued “for” or “by order” and signed only by the
chief of staff. All such orders are binding on subordinates. How
far a chief of staff can go in issuing orders without previous
authorization or without calling them to the attention of his
commander depends upon many factors, including his own quali-
fications, his rank, the nature of the headquarters, his personal
relationship with his commander, and primarily upon the per-
sonality of the commander. A chief of staff does not hold a
clerical position. In the German army chiefs of staff were not
used below an army corps. The rank and care with which staff
officers were selected show in itself the wide scope of their re-
sponsibilities which could, and in many instances undoubtedly
did, result in the chief of staff assuming many command and
executive responsibilities which he exercised in the name of his
commander.

One of his main duties was to relieve his commander of certain
responsibilities so that such commander could confine himself to

514

«

those matters considered by him of major importance. It was
of course the duty of a chief of staff to keep such commander
informed of the activities which took place within the field of
his command insofar at least as they were considered of sufficient
importance by such commander. Another well accepted function
of chiefs of staff and of all other staff officers is, within the field
of their activities, to prepare orders and directives which they
consider necessary and appropriate in that field and which are
submitted to their superiors for approval.

As stated heretofore, the responsibility allowed a chief of staff
to issue orders and directives in the name of his commander
varied widely and his independent powers for exercising initiative
therefore also varied widely in practice. The field for personal
initiative as to other staff officers also varied widely. That such
a field did exist however is apparent from the testimony of the
various defendants who held staff positions and in their testimony
have pointed out various cases in which they modified the specific
desires of their superiors in the interests of legality and humanity.
If they were able to do this, the same power could be exercised
for other ends and purposes and they were not mere transcribers
of orders.

Surely the staff officers of the OKW did not hold their high
ranks and positions and did not bask in the bright sunlight of
official favor of the Third and Thousand Year Reich by merely
impeding and annulling the wishes of the Nazi masters whom they
served.

It over-taxes the credulity of this Tribunal to believe that Hitler
or Keitel or Jodi, or all three of these dead men, in addition to
their many activities as to both military matters and matters of
state, were responsible for the details of so many orders, words
spoken in conferences, and even speeches which were made. We
are aware that many of the evil and inhumane acts of the last
war may have originated in the minds of these men. But it is
equally true that the evil they originated and sponsored did not
spread to the far flung troops of the Wehrmacht of itself. Staff
officers were indispensable to that end and cannot escape criminal
responsibility for their essential contribution to the final execu-
tion of such orders on the plea that they were complying with
the orders of a superior who was more criminal.

COMMISSAR ORDER

This was one of the most obviously malevolent, vicious, and
criminal orders ever issued by any army of any time. It called
for the murder of Russian political functionaries and, like so much
of the evils of the Third Reich, originated in Hitler’s fertile brain.

515

As will be shown, it was issued prior to the opening of the cam-
paign against Russia.

On 30 March 1941, Hitler held a conference at Berlin with
leaders of the Wehrmacht. Von Leeb was present. At that time,
according to the summary contained in General Haider’s Diary,
Hitler said:

“Clash of two ideologies. Crushing denunciation of bol-
shevism, identified with asocial criminality. Communism is an
enormous danger for our future. We must forget the concept
of comradeship between soldiers. A Communist is no comrade
before nor after the battle. This is a war of extermination.
If we fail to grasp this, and though we are sure to beat the
enemy, we shall again have to fight the Communist foe 30
years from now. We do not wage war to preserve the enemy.

“War against Russia. Extermination of the Bolshevist com-
missars and of the Communist intelligentsia. The new states
must be Socialist, but without intellectual classes of their own.
Growth of a new intellectual class must be prevented. A primi-
tive Socialist intelligentsia is all that is needed. We must fight
against the poison of disintegration. This is no job for military
courts. The individual troop commander must know the issues
at stake. They must be leaders in the fight. The troops must
fight back with the methods with which they are attacked.
Commissars and GPU men are criminals and must be dealt with
as such. This need not mean that the troops get out of hand.
Rather the commander must give orders which express the
common feelings of his troops.

“This war will be very different from the war in the West.
In the East, harshness today means leniency in the future.
Commanders must make the sacrifice of overcoming their per-
sonal scruples.”

This seemed to have caused quite a bit of excitement among
those present who, of course, recognized it as being brutal, mur-
derous, and uncivilized. After Hitler had made his speech and
had departed to his inner sanctum, protests were uttered by the
commanders to the effect [that] the extermination planned by
Hitler would violate their soldierly principles and, further, would
destroy discipline. Brauchitsch agreed with them and promised
to express their opinion to the OKW and Hitler respectively. He
tried through Keitel to obtain a change in the plans but was
unable to do so. Subsequently, he lent his approval to the objec-
tions made by the field commanders, who, in some instances at
least, expressed a negative opinion of the order to their sub-
ordinates and tried to avoid its execution as far as they could

516

do so without peril to themselves. One of the means to ameliorate
the brutality of the Commissar Order was the issuance by von
Brauchitsch of what is known as the "Maintenance of Discipline”
order hereafter referred to.

On 6 June 1941, the Commissar Order was issued from the
Fuehrer Headquarters as "Top Secret. Transmission only by
officer !” and was captioned "Directives for the Treatment of
Political Commissars. ,, It was as follows [NOKW-A8U, Pros.
Ex. 56] :*

"In the fight against bolshevism it is not to be expected that
the enemy will act in accordance with the principles of human-
ity or of the international law. In particular, a vindictive,
cruel, and inhuman treatment of our prisoners must be ex-
pected on the part of the political commissars of all types , as
they are the actual leaders of the resistance.

"The troops must realize —

"1. In this fight, leniency and considerations of international
law are out of place in dealing with these elements. They con-
stitute a danger for their own safety and the swift pacification
of the conquered territories.

"2. The originators of barbarous Asiatic methods of warfare
are the political commissars. They must therefore be dealt
with most severely, at once and summarily.

"Therefore, they are to be liquidated at once when taken in
combat or offering resistance.

"For the rest, the following directives will apply :

"I. Combat zone.

"(1) Political commissars who oppose our troops will be
treated in accordance with the, 'decree concerning the appli-
cation of martial law in the Barbarossa area’. This applies to
commissars of any type and grade, even if they are only sus-
pected of resistance, sabotage, or of instigation thereto.

"Reference is made to the 'directive concerning the conduct
of the troops in Russia.'

"(2) Political commissars as organs of the enemy troops are
recognizable by special insignia — red star with interwoven gold
hammer and sickle on the sleeves. (For particulars see 'The
Armed Force of the U.S.S.R.’, High Command of the Armed
Forces General Staff of the Army, Qu. IV, Section Foreign
Armies East, (II) No. 100/41 Secret of 15 January 1941,
Appendix 9d.) They are to be segregated at once , e.g., still on
the battlefield, from the prisoners of war. This is necessary
to prevent them from influencing the prisoners of war in any

* Document reproduced above in section VII, A2.

517

way. These commissars will not be recognized as solders, the
protection of prisoners of war by international law does not
apply to them. They will be liquidated after segregation.

“(3) Political commissars who have not committed, or are
not suspected of hostile acts will not be harmed for the time
being. Only after deeper penetration of the country will it be
possible to decide whether officials who were left behind may
stay where they are or will be handed over to the Sonderkom-
mandos. Preferably the latter should decide on this point.
As a matter of principle, in deciding the question whether
‘guilty or not guilty’ the personal impression which the com-
missar makes of his mentality and attitude will have precedence
over facts which may be unprovable.

“(4) In cases (1) and (2) a short message (message form)
about the incident will be sent: (a) by divisional units to divi-
sional headquarters (intelligence officer) ; (b) by troops directly
under the command of a corps, an army, an army group or
a Panzer group, to the respective headquarters (intelligence
officer) .

“(5) None of the above-mentioned measures must obstruct
the operations. Methodical searches and mopping-up actions,
therefore, will not be carried out by the troops.

“II. In the communication zone commissars who are arrested
in the communications zone on account of a doubtful attitude
will be handed over to the Einsatzgruppen and/or Einsatzkom-
mandos of the Security Police (Security Service).

“HI. Limitations of courts martial and summary courts —
The courts martial and summary courts of the regimental and
other commanders must not be entrusted with the execution
or the measures as per I and II.”

On 8 June 1941, von Brauchitsch sent out a supplement of two
additional clauses to be added to the original, viz, to I number (1),

“Action taken against a political commissar must be based
on the fact that the person in question has shown by a special
recognizable act or attitude that he opposes or will in future
oppose the Wehrmacht.”

To I number (2),

“Political commissars attached to the troops should be segre-
gated and dealt with by order of an officer, inconspicuously and
outside the proper battle zone.”

On 24 May 1941, however, von Brauchitsch formulated the
Maintenance of Discipline Order, in which as a supplement to the
Fuehrer Order it is said :

518

“Subject: Treatment of enemy civilians and criminal acts
of members of the Wehrmacht against enemy
civilians

“Attached Fuehrer decree is (hereby) announced. It is to be
distributed in writing down to the commanders with jurisdic-
tion of their own, beyond that, the principles contained in it
are to be made known orally.

“Supplements to I — I expect that all counterintelligence meas-
ures of the troops will be carried out energetically, for their
own security and the speedy pacification of the territory won.
It will be necessary to take into account the variety of ethnic
strains within the population, its over-all attitude, and the
degree to which they have been stirred up.

“Movement and combat against the enemy's armed forces are
the real tasks of the troops. It demands the fullest concentra-
tion and the highest effort of all forces. This task must not
be jeopardized in any place. Therefore, in general, special
search and mopping-up operations will be out of question for
the combat troops.

“The directives of the Fuehrer concern serious cases of rebel-
lion, in which the most severe measures are required.

“Criminal acts of a minor nature are, always in accordance
with the combat situation, to be punished according to detailed
orders from an officer (if possible, a post commander) by re-
sorting to provisional measures (for instance, temporary deten-
tion at reduced rations, roping-upon a tree, assignment to
labor) .

“The CinC’s of the army groups are requested to obtain my
approval prior to the reinstatement of Wehrmacht jurisdiction
in the pacified territories. The CinC’s of the armies are ex-
pected to make suggestions in this respect in time.

“Special instructions will be issued about the treatment to
be given to political dignitaries.

“Supplements to II — Under all circumstances it will remain
the duty of all superiors to prevent arbitrary excesses of indi-
vidual members of the army and to prevent in time the troops
becoming unmanageable. It must not come to it that the indi-
vidual soldier commits or omits any act he thinks proper toward
the indigenous population; he must rather feel that in every
case he is bound by the orders of his officers. I consider it very
important that this be clearly understood down to the lowest
unit. Timely action by every officer, especially every company
commander, etc., must help to maintain discipline, the basis of
our successes.

519

“Occurrences with regard to T and ‘IF, and which are of

special importance, are to be reported by the troops to the

OKH as special events.

[Signed] von Brauchitsch”

There are 340 copies of this order which, as noted, had attached
a copy of the Fuehrer order. This apparently was given wide dis-
tribution, although the original Fuehrer order had a very limited
distribution.

It is said the maintenance of discipline order was conceived by
von Brauchitsch as a means of sabotaging the Hitler order, but it
will be noted that in the quoted part of Haider's diary he has
Hitler saying, “This need not mean that the troops get out of
hand".

It seems to be conceded — if any concession is necessary — that
this order was criminal. It has neither defender nor apologist.
Instead of a straightforward and manly refusal to execute a
criminal order, some of the defendants sought a surreptitious
sabotaging and evasion of its enforcement. However, in spite of
such rejection or opposition on the part of those in high command,
the record contains a large number of reports showing the execu-
tion of commissars by units subordinate to various of the defend-
ants, as will be shown in the discussion of the case pertaining
to each. This would have been avoided had some of these com-
manders been sufficiently courageous to have forced the issue.
This was not done. It was implemented throughout the army.

It is claimed that on some occasions at least, blown up, exag-
gerated, or even fictitious figures were given of the number of
these functionaries who were murdered. But the cold, hard, in-
escapable fact remains that many were so executed in utter viola-
tion of the laws of war and of humanity.

Can these defendants escape liability because this criminal order
originated from a higher level? They knew it was directed to
units subordinate to them. Reports coming in from time to time
from these subordinate units showed the execution of these
political functionaries. It is true in many cases they said they
had no knowledge of these reports. They should have had such
knowledge. If they had expressed their opposition to and rejec-
tion of the Commissar Order, that the reports showing the carry-
ing out of this order would have been shown to them by their
subordinates is a conclusion that is inescapable. It was criminal
to pass it down to subordinate units. When the subordinates
obeyed the order, the superior cannot absolve himself by the plea
that his character was so well known that his subordinates should
have had the courage to disobey the order which he himself in

520

passing it down showed that he lacked. Such a plea is contempt-
ible and constitutes no defense.

Presiding Judge Young: I shall continue with the reading of
the judgment.

BARBAROSSA JURISDICTION ORDER

The so-called Barbarossa Jurisdiction Order is in a different
category from the Commissar and Commando Orders and its
consideration is somewhat more complicated. This order was
issued by Keitel on 13 May 1941 as “Decree on Exercising Mili-
tary Jurisdiction in the Area of Barbarossa and Special Measures
by the Troops”, and reads as follows ( C-50 , Pros . Ex . 59I>) :

“The Wehrmacht’s application of its laws (Wehrmacht-
gerichtsbarkeit) place at maintaining discipline.

“The vast extent of the operational areas in the East, the
fighting methods necessitated thereby and the peculiarity of
the enemy give the Wehrmacht courts jobs which — in view of
their limited personnel — they can only solve during war opera-
tions and until some degree of pacification has been obtained in
the conquered area if they limit themselves at first to their
main task.

“This is possible only if the troops themselves oppose ruth-
lessly any threat from the enemy population.

“For these reasons herewith the following is ordered for the
area ‘Barbarossa’ (area of operations, army group rear area,
and area of political administration).

I. “ Treatment of crimes committed by enemy civilians

“1. Until further order the military courts and the courts
martial will not be competent for crimes committed by enemy
civilians .

“2. Francs-tireurs will be liquidated ruthlessly by the troops
in combat or while fleeing.

“3. Also all other attacks by enemy civilians against the
armed forces , its members, and auxiliaries will be suppressed
on the spot by the troops with the most rigorous methods until
the assailants are finished (niederkaempfen) .

“4. Where such measures were not taken or at least were
not possible, persons suspected of the act will be brought before
an officer at once . This officer will decide whether they are to
be shot .

“Against localities from which troops have been attacked in
a deceitful or treacherous manner, collective coercive measures
will be applied immediately upon the order of an officer of the

521

rank of at least battalion etc., commander, if the circumstances
do not permit a quick identification of individual perpetrators.

“5. It is strictly forbidden to keep suspects in custody in
order to put them at the disposal of the courts after the rein-
statement of jurisdiction over indigenous inhabitants.

“6. The commanders in chief of the army groups can — by
agreement with the competent commanders of the Luftwaffe
and the navy — reinstate jurisdiction of the Wehrmacht courts
for civilians, in areas sufficiently pacified.

“For the area of the political administration this order will
be given by the Chief of the OKW.

II. “Treatment of crimes committed against inhabitants by
members of the Wehrmacht and its auxiliaries

“1. With regard to offenses committed against enemy civi-
lians by members of the Wehrmacht or by its auxiliaries
prosecution is not obligatory, even where the deed is at the
same time a military crime or misdemeanor.

“2. When judging such offenses, it will be taken into con-
sideration in any type of procedure that the collapse of Germany
in 1918, the subsequent sufferings of the German people and
the fight against national socialism which cost the blood of
innumerable followers of the movement were caused primarily
by Bolshevist influence and that no German has forgotten this
fact.

“3. Therefore the judiciary will decide in such case whether
disciplinary punishment will be appropriate, or whether prose-
cution in court is necessary. In the case of offenses against
indigenous inhabitants the judiciary will order a prosecution
before the military courts only if the maintenance of discipline
or the security of the forces call for such a measure. This
applies for instance to serious deeds due to lack of self-control
in sexual matters, which originate from a criminal disposition
and which indicates that the discipline of the troops is threaten-
ing to deteriorate seriously. Crimes which have resulted in
senseless destruction of billets or stores or any other kind of
captured material, to the disadvantage of our forces will be
judged, as a rule, not less severely.

“The order to start investigation procedure requires in every
single case the signature of the judicial authority.

“4. Extreme caution is required in judging the credibility of
statements made by enemy civilians.

III. “Responsibility of the Troop Commanders

“In as far as they are competent, it is the personal respon-
sibility of the troop commanders to see to it —

522

“1. That all officers of the units under their command are in-
structed in time and in the most emphatic manner about the
principles set out under I above,

“2. That their legal advisers are informed in time of these
rules and of the verbal communications in which the political
intentions of the Supreme Command (Fuehrung) were ex-
plained to the commanders in chief .

“3. That only those sentences will be confirmed which cor-
respond to the political intentions of the Supreme Command
(Fuehrung) .

IV. “Protection as secret matter

“Once the camouflage is lifted this decree will merely have
the classification of Top Secret”

It is divided into two main parts : first, it dispensed with court
martial jurisdiction over the civilian population and provided
that civilians in the occupied areas would be subjected to arbitrary
punishment upon the decision of an officer. The second part pro-
vided that there was no obligation to prosecute members of the
Wehrmacht or its auxiliaries who committed crimes against enemy
civilians except in cases involving discipline which were restricted
to certain types of offenses.

As to the first phase, court martial jurisdiction of civilians is
not considered under international law an inherent right of a
civilian population and is not an inherent prerogative of a mili-
tary commander. The obligation towards civilian populations
concerns their fair treatment. Court martial jurisdiction of a
military commander and its extent are determined by his
superiors. It has been urged in this trial that there is no rule
of international law that guerrillas be brought to trial before a
court and that this order authorizing their disposition on the
arbitrary decision of an officer is therefore not illegal. There may
be some doubt that trial before a court is in fact required under
international law.

But in considering this order it must be borne in mind that it
was not solely applicable to guerrillas and that it is an obligation
upon an occupying force to provide for the fair treatment of the
civilians within the occupied area. Whatever may be said as to
the summary proceedings against guerrillas, the allowing of such
summary proceedings in the discretion of a junior officer, in the
case of the wide variety of offenses that were left open to him, is
considered criminal.

Furthermore, the fourth paragraph of section I above in its
most favorable construction is at best ambiguous but the logical
inference to be drawn from this section goes further in the

893964—51 35

523

opinion of the Tribunal and provides ihat suspected francs-tireurs
may be shot, which is also considered illegal.

The fourth paragraph of section I also provides for collective
coercive measures to be applied immediately upon the order of
an officer of at “least battalion, etc., commander” and is con-
sidered illegal in that it places no limitations upon such collective
actions whatsoever.

For these reasons the first part of this order is considered illegal
and we so find.

With regard to the second aspect of this order, that is the obli-
gation to prosecute soldiers who commit offenses against the
indigenous population, this obligation as a matter of international
law is considered doubtful. The duty imposed upon a military
commander is the protection of the civilian population. Whether
this protection be assured by the prosecution of soldiers charged
with offenses against the civilian population, or whether it be
assured by disciplinary measures or otherwise, is immaterial from
an international standpoint. This order in this respect is subject
to interpretation. It surely opened the door to serious infractions
of discipline. The German Army was concerned with the disci-
pline of its troops. That discipline could not be maintained
without punishment. Unwarranted acts of a soldier against a
civilian constituted a breach of discipline. As a matter of fact,
practically any offense against civilians could be construed as a
breach of discipline. The provisions of the act itself recognize
in part this situation. Recognition of this fact in the order was
further strengthened by the von Brauchitsch so-called disciplinary
order. This order was issued on 21 May 1941, practically co-
incident with the Barbarossa Jurisdiction Order, and was quoted
above in connection with the Commissar Order.

This order was apparently given wide distribution and it is
considered not without merit that the military authorities in the
issuance of this order had substantially limited section II of the
Barbarossa Jurisdiction Order insofar as that order did away
with the obligation to prosecute. At any rate, as far as the acts
of a soldier against the civilian population were concerned, prac-
tically any act might be interpreted as an act against discipline.

This disciplinary order by von Brauchitsch, however, was vir-
tually canceled by certain subsequent orders issued by Keitel
which will be hereafter noted in this opinion.

As regards the first part of the Barbarossa Jurisdiction Order,
commanders were merely deprived of jurisdiction. It was not a
positive order to do some act. It was merely an order which
took away part of their powers. It is difficult to see how courts
martial could have been established to try civilians under such

524

circumstances and the actions of such courts would have been
illegal and futile. As regards the second part of the order, as
heretofore stated, it was subject to the interpretation that un-
warranted acts against civilians constituted a breach of discipline.
The illegal application of the order, therefore, rested to a marked
extent with the commanders in the field.

Another provision of this order must be given consideration in
this regard. Paragraph 6 of section I provides that the com-
mander in chief of the army groups can by agreement with the
competent commanders of the Luftwaffe and the navy “reinstate
jurisdiction of the Wehrmacht courts for civilians, in areas suffi-
ciently pacified.” While the limitation is placed upon this pro-
vision that the areas must be sufficiently pacified before the
jurisdiction of the Wehrmacht courts could be reinstated, this
provision nevertheless left the door open for commanders in chief
of army groups opposed to the arbitrary provisions of the order
as to civilians, to take action to eliminate it from their areas.
This the record shows none of them did.

This Tribunal does not hold field commanders guilty for a
failure to properly appraise the fine distinctions of international
law, nor for failure to execute courts martial jurisdiction which
had been taken away from them, but it does consider them crim-
inally responsible for the transmission of an order that could,
and from its terms would, be illegally applied where they have
transmitted such an order without proper safeguards as to its
application. For that failure on their part they must accept
criminal responsibility for its misapplication within subordinate
units to which they transmitted it. And in view of the relation
of this order to francs-tireurs, it takes the view that while com-
manding generals might not be able under the provisions of the
Barbarossa Jurisdiction Order to establish courts martial to try
them, that such commanders were nevertheless responsible, within
the areas of their commands, for the summary execution of per-
sons who were merely suspects or those who, from their acts,
were not in fact francs-tireurs at all, such as the execution of
the nineteen year old girl who wrote a song derogatory of the
German invader of her country.

COMMANDO ORDER

Following the Dieppe raid, and after drafts and changes had
been prepared largely by Warlimont and Lehmann, Hitler issued
the following order on 18 October 1942 [498-PS, Pros. Ex. 124] :

525

“TOP SECRET

“1. For some time our enemies have been using in their war-
fare methods which are outside the international Geneva Con-
ventions. Especially brutal and treacherous is the behavior of
the so-called commandos, who, as is established, are partially
recruited even from freed criminals in enemy countries. From
captured orders it is divulged, that they are directed not only
to shackle prisoners, but also to kill defenseless prisoners on the
spot at the moment in which they believe that the latter as
prisoners represent a burden in the further pursuit of their
purposes or could otherwise be a hindrance. Finally, orders
have been found in which the killing of prisoners has been
demanded in principle.

“2. For this reason it was already announced in an addendum
to the armed forces report of 7 October 1942 that in the
future, Germany, in the face of these sabotage troops of the
British and their accomplices, will resort to the same procedure,
i.e., that they will be ruthlessly mowed down by the German
troops in combat, wherever they may appear.

“3. I therefore order —

From now on all enemies on so-called commando missions in
Europe or Africa challenged by German troops, even if they
are to all appearance soldiers in uniform or demolition troops,
whether armed or unarmed, in battle or in flight, are to be
slaughtered to the last man. It does not make any difference
whether they are landed from ships and aeroplanes for their
actions, or whether they are dropped by parachute. Even if
these individuals, when found, should apparently be prepared
to give themselves up, no pardon is to be granted them on
principle. In each individual case full information is to be
sent to the OKW for publication in the report of the military
forces.

“4. If individual members of such commandos, such as agents,
saboteurs, etc., fall into the hands of the military forces by some
other means, through the police in occupied territories for in-
stance, they are to be handed over immediately to the SD.
Any imprisonment under military guard, in PW stockades for
instance, etc., is strictly prohibited, even if this is only intended
for a short time.

“ 5 . This order does not apply to the treatment of any enemy
soldiers who, in the course of normal hostilities (large scale
offensive actions, landing operations and airborne operations) ,
are captured in open battle or give themselves up. Nor does
this order apply to enemy soldiers falling into our bands after

526

battles at sea, or enemy soldiers trying to save their lives by
parachute after battles.

“6. I will hold responsible under military law, for failing
to carry out this order, all commanders and officers who either
have neglected their duty of instructing the troops about this
order, or acted against this order where it was to be executed.”
This order was criminal on its face. It simply directed the
slaughter of these “sabotage” troops.

The connection of certain defendants with it is treated in the
discussion of the individual cases.

NIGHT AND FOG DECREE

This was another criminal order from Hitler’s brain. It was
signed by Keitel on 7 December 1941, after prior negotiations
with Lehmann and Warlimont, and is as follows [ 1733-PS ,
Pros. Ex. 797] :

“Since the opening of the Russian campaign, Communist ele-
ments and other anti-German circles have increased their
assaults against the Reich and the occupation power in the
occupied territories. The extent and the danger of these
activities necessitate the most severe measures against the
malefactors in order to intimidate them. To begin with one
should proceed according to the following directives.

I

“In case of criminal acts committed by non-German civilians
and which are directed against the Reich or the occupation
power endangering their safety or striking power, the death
penalty is applicable in principle.

II

“Criminal acts contained in paragraph I will, in principle,
be tried in the occupied territories only when it appears prob-
able that death sentences are going to be passed against the
offenders, or at least the main offenders, and if the trial and
the execution of the death sentence can be carried out without
delay. In other cases the offenders, or at least the main
offenders, are to be taken to Germany.

III

“Offenders who are being taken to Germany are subject to
court martial procedure there only in case that particular
military concerns should require this. German and foreign
agencies will declare upon inquiries on such offenders that
they were arrested and the state of the proceeding did not
allow further information.

527

IV

“The commanders in chief in the occupied territories and the
justiciars, within their jurisdiction, will be personally held
responsible for the execution of this decree.

V

“The Chief of the OKW will decide in which of the occupied
territories this decree shall be applied. He is authorized to
furnish explanations, supplements, and to issue directives for its
execution. The Reich Minister of Justice will issue directives
for the execution within his jurisdiction.”

We have heretofore quoted from the judgment of the Interna-
tional Military Tribunal relative to this order and it need not be
repeated. The enforcement of this cruel and brutal order cost
the lives of many innocent people and untold suffering and misery
to their loved ones.

The connection of certain of the defendants with it will be
treated in our handling of the cases against them.

There are criminal orders involved in this case, other than those
we have specifically mentioned, which we discuss in connection
with the case of the defendants to whom they were applicable.

HOSTAGES AND REPRISALS

In the Southeast Case [Hostage Case], United States vs. Wil-
helm List, et al., (Case No. 7), the Tribunal had occasion to con-
sider at considerable length the law relating to hostages and
reprisals. It was therein held that under certain very restrictive
conditions and subject to certain rather extensive safeguards,
hostages may be taken, and after a judicial finding of strict com-
pliance with all preconditions and as a last desperate remedy
hostages may even be sentenced to death. It was held further that
similar drastic safeguards, restrictions, and judicial preconditions
apply to so-called “reprisal prisoners.” If so inhumane a meas-
ure as the killing of innocent persons for offenses of others, even
when drastically safeguarded and limited, is ever permissible
under any theory of international law, killing without full com-
pliance with all requirements would be murder. If killing is not
permissible under any circumstances, then a killing with full
compliance with all the mentioned prerequisites still would be
murder.

In the case here presented, we find it unnecessary to approve
or disapprove the conclusions of law announced in said judgment
as to the permissibility of such killings. In the instance of so-
called hostage taking and killing, and the so-called reprisal kill-

528

ings with which we have to deal in this case, the safeguards and
preconditions required to be observed by the Southeast judgment
were not even attempted to be met or even suggested as neces-
sary. Killings without full compliance with such preconditions
are merely terror murders. If the law is in fact that hostage and
reprisal killings are never permissible at all, then also the so-called
hostage and reprisal killings in this case are merely terror
murders.

The responsibility of defendants for any such acts will be con-
sidered in our determination of the cases against the individual
defendants.

PARTISAN WARFARE

The execution of partisans as francs-tireurs is connected with
the Barbarossa Jurisdiction Decree in that it involves the treat-
ment of civilians by the occupying and invading forces.

The record in this case contains much testimony and among the
numerous exhibits are many documents dealing with so-called
partisan warfare. We deem it desirable to make some comment
on the law relating thereto before considering the cases of the
individual defendants.

Articles 1 and 2 of the Annex to the Hague Convention are as
follows :

“Article 1

“The laws, rights, and duties of war apply not only to armies,
but also to militia and volunteer corps fulfilling the following
conditions :

“1. To be commanded by a person responsible for his sub-
ordinates.

“2. To have a fixed distinctive emblem recognizable at a
distance.

“3. To carry arms openly : and

“4. To conduct their operations in accordance with the laws
and customs of war.

“In countries where militia or volunteer corps constitute the
army, or form part of it, they are included under the denomina-
tion ‘army’.

“Article 2

“The inhabitants of a territory which has not been occupied,
who, on the approach of the enemy, spontaneously take up arms
to resist the invading troops without having had time to or-
ganize themselves in accordance with Article 1, shall be re-
garded as belligerents if they carry arms openly and if they
respect the laws and customs of war.”

529

A failure to meet these requirements deprives one so failing
on capture of a prisoner of war status.

We have a strong suspicion from the record in this case that
antipartisan warfare was used by the German Reich as a pretext
for the extermination of many thousands of innocent persons.
Hitler stated what it seems became the Wehrmacht policy when
he said: “This partisan war again has some advantages for us;
it enables us to eradicate everyone who opposes us.”

The defendants without exception claim that they executed as
partisans only those who were operating as francs-tireurs and
bandits and who failed to comply with the requirements of the
rules of war to constitute them lawful belligerents. They claim
there is no evidence adduced by the prosecution that the defend-
ants are guilty of executing any as so-called partisans who com-
plied with the requirements to constitute them lawful belligerents,
that is, any who were not in fact francs-tireurs. However, we
need not on the record before us determine whether this is true
or untrue for the evidence shows beyond any question that it was
the policy of the Wehrmacht to create classes of partisans by
definition in orders and directives and by construction and in
this manner they brought within the list of these they prescribed
as partisans and shot or hung not only the franc-tireur, in fact,
but also many other classes that no conceivable reason can be
found for so including except as Hitler stated it, “to eradicate all
those who oppose us”. In a conference called by General Mueller
(General for Special Assignments) at Warsaw before the Russian
campaign to instruct the judge advocate and intelligence officers
of the armies on the meaning and scope of the Barbarossa Juris-
diction Decree, the following was the construction and instruction
given :

“One of the two enemies must die; do not spare the bearer
of enemy ideology, but kill him.

“Every civilian who impedes or incites others to impede the
German Wehrmacht is also to be considered a guerrilla (for
instance : instigators, persons who distribute leaflets, nonobserv-
ance of German orders, arsonists, destroying of road signs,
supplies, etc.).

“The population is denied the right to take up arms volun-
tarily. Neither are para-military associations (Komsomoel
Osscaviachim) entitled to do so.”

The classification certainly is elastic and capable of wide exten-
sion. “Every civilian who impedes or incites others to impede the
German Wehrmacht,” taken as a criterion for determining who is
a franc-tireur, clearly opens the way for arbitrary and bloody

530

implementation. Those falling into the various classifications were
summarily executed as partisans and so classified in the reports.
There is no warrant in the rules of war or in international law
for dealing with such persons as francs-tireurs , guerrillas, or ban-
dits. Red Army soldiers in uniform were in some instances shot
as so-called partisans. There is, of course, no warrant in interna-
tional law for such action.

The most vicious classification of the prescribed was that of
“partisan suspect”. The executions of such were a regular routine
and their executions were reported along with those of the so-
called partisans.

Suspicion is a state of mind of the accuser and not a state of
mind or an act by the one accused. It is a monstrous proposition
containing the very essence of license that the state of mind of the
accuser shall be the determining factor, in the absence of evidence
of guilt, whether the accused shall or shall not be summarily exe-
cuted. But it is said that when these accused were captured they
were interrogated and some were not executed but released or sent
to prison camps. But this is no defense for it does not necessarily
mean that those who were executed as suspects had been found
guilty even by the informal interrogation by an officer, but only
that the interrogator had not had his suspicion that they were
guilty removed , so under the order, they, being still suspected,
they were executed. This does not amount to even the minimum
of judicial protection required before an execution.

The classification of the victims in the numerous reports in the
records as partisan suspects is a natural and proper one to be
made under the order for execution on mere suspicion of partisan
activity. If, as defendants have contended, no suspects were exe-
cuted until they were lawfully found and adjudged to be guilty,
there was no need whatsoever for the distinction made in the
classification. We find from the evidence that there were great
numbers of persons executed in the areas of various of these
defendants, who, under no stretch of the imagination, were francs-
tireurs and great numbers of others executed solely on suspicion,
without any proof or lawful determination that they were in fact
guilty of the offenses of which they were suspected. The orders
to execute such persons and mere suspects on suspicion only and
without proof, were criminal on their face. Executions pursuant
thereto were criminal. Those who gave or passed down such
orders must bear criminal responsibility for passing them down
and for their implementation by the units subordinate to them.

Notwithstanding our strong suspicion that the executions of
persons described in the documents as partisans were in a vast
number of cases not executions of those whom it was permissible

531

to execute under the rules of war, but a mere cloak under which
innocent persons were eradicated, we accord to the defendants the
benefit of any possible doubt and determine the question of their
criminality on the basis of cases of the type mentioned concerning
the criminality of which under both the law and the evidence
there can be no doubt.

We shall determine on consideration of the evidence each de-
fendant’s guilt or innocence as to such matters charged against
him.

THE HAGUE AND GENEVA CONVENTIONS

Another question of general interest in this case concerns the
applicability of the Hague Convention and the Geneva Convention
as between Germany and Russia. In determining the applicability
of the Hague Convention it must be borne in mind, first, that
Russia ratified this convention but Bulgaria and Italy did not.
The binding effect of the Hague Convention upon Germany was
considered by the IMT in the trial against Goering, et al. On
page 253* of that judgment it is stated:

“But it is argued that the Hague Convention does not apply
in this case, because of the ‘general participation’ clause in
Article 2 of the Hague Convention of 1907. That clause pro-
vided :

“ ‘The provisions contained in the regulations (Rules of Land
Warfare) referred to in Article I as well as in the present
Convention do not apply except between contracting powers,
and then only if all the belligerents are parties to the Con-
vention.’

“Several of the belligerents in the recent war were not parties
to this Convention.

“In the opinion of the Tribunal it is not necessary to decide
this question. The rules of land warfare expressed in the Con-
vention undoubtedly represented an advance over existing
international law at the time of their adoption. But the con-
vention expressly stated that it was an attempt ‘to revise the
general laws and customs of war’, which it thus recognized to be
existing, but by 1939 these rules laid down in the Convention
were recognized by all civilized nations, and were regarded as
being declaratory of the laws and customs of war which are
referred to in Article 6(b) of the Charter.”

It is apparent from the above quotation that the view adopted
by the IMT in that case as to the Hague Conventions was that they
were declaratory of existing international law and therefore bind-

* Trial of the Major War Criminals, op. cit. supra, vol. I, pp. 253-254.

532

ing upon Germany. In this connection it is further pointed out
that the defense in this case, particularly as regards partisan war-
fare, primarily is based upon the fact that partisans could be shot
or hanged since under the Hague Convention they were not lawful
belligerents. The defense can hardly contend that Germany was
in a position to sort out as binding on her only those provisions
of these Conventions which suited her own purposes. Like the
IMT, we do not feel called upon in this case to determine whether
or not the Hague Conventions were binding upon Germany as an
international agreement. We adopt the principle outlined in that
case to the effect that in substance these provisions were binding
as declaratory of international law.

As regards to the Geneva Convention, it is to be borne in mind
that Russia was not a signatory power to this convention. There
is evidence in this case derived from a divisional order of a Ger-
man division that Russia had signified her intention to be so bound.
However, there is no authoritative document in this record upon
which to base such a conclusion. In the case of Goering et al.,
above cited, the IMT * stated as follows :

“The argument in defense of the charge with regard to the
murder and ill-treatment of the Soviet prisoners of war, that
the U.S.S.R., was not a party to the Geneva Convention, is quite
without foundation. On 15 September, Admiral Canaris pro-
tested against the regulations for the treatment of Soviet pris-
oners of war, signed by General Reinecke on 8 September 1941.
He then stated:

“ ‘The Geneva Convention for the treatment of prisoners of
war is not binding m the relationship between Germany and
the U.S.S.R. Therefore, only the principles of general inter-
national law on the treatment of prisoners of war apply. Sinne
the 18th century these have gradually been established along
the lines that war captivity is neither revenge nor punishment,
but solely protective custody, the only purpose of which is to
prevent the prisoners of war from further participation in the
war. This principle was developed in accordance with the view
held by all armies that it is contrary to military tradition to kill
or injure helpless people * * *. The decrees for the treatment
of Soviet prisoners of war enclosed are based on a fundamen-
tally different viewpoint.’

* * * * * * *

“ Article 6(b) of the Charter provides that ‘ill-treatment * * *
of civilian population of or in occupied territory * * * killing
of hostages * * * wanton destruction of cities, towns, or villages'

* Ibid., p. 232.

533

shall be a war crime. In the main, these provisions are merely
declaratory of the existing laws of war as expressed by the
Hague Convention, Article 46, which stated : ‘Family honor and
rights, the lives of persons and private property, as well as
religious convictions and practice must be respected.’ ”

It would appear from the above quotation that that Tribunal
accepted as international law the statement of Admiral Canaris to
the effect that the Geneva Convention was not binding as between
Germany and Russia as a contractual agreement but that the
general principles of international law as outlined in those con-
ventions were applicable. In other words, it would appear that
the IMT in the case above cited followed the same lines of thought
with regard to the Geneva Convention as with respect to the Hague
Convention to the effect that they were binding insofar as they
were in substance an expression of international law as accepted
by the civilized nations of the world, and this Tribunal adopts
this viewpoint.

One serious question that confronts us arises as to the use of
prisoners of war for the construction of fortifications. It is
pointed out that the Hague Convention specifically prohibited the
use of prisoners of war for any work in connection with the opera-
tions of war, whereas the later Geneva Conventions provided that
there shall be no direct connection with the operations of war.
This situation is further complicated by the fact that when the
proposal was made to definitely specify the exclusion of the build-
ing of fortifications, objection was made before the conference to
that limitation, and such definite exclusion of the use of prisoners
was not adopted. There is also much evidence in this case to the
effect that Russia used German prisoners of war for such pur-
poses. It is no defense in the view of this Tribunal to assert that
international crimes were committed by an adversary, but as evi-
dence given to the interpretation of what constituted accepted
use of prisoners of war under international law, such evidence is
pertinent. At any rate, it appears that the illegality of such use
was by no means clear. The use of prisoners of war in the con-
struction of fortifications is a charge directed against the field
commanders on trial here. This Tribunal is of the opinion that
in view of the uncertainty of international law as to this matter,
orders providing for such use from superior authorities, not
involving the use of prisoners of war in dangerous areas, were
not criminal upon their face, but a matter which a field commander
had the right to assume was properly determined by the legal
authorities upon higher levels.

Another charge against the field commanders in this case is

534

that of sending prisoners of war to the Reich for use in the arma-
ment industry. The term “for the armament industry” appears
[ in numerous documents. While there is some question as to the
interpretation of this term, it would appear that it was used to
cover the manufacture of arms and munitions. It was neverthe-
less legal for field commanders to transfer prisoners of war to the
Reich and thereafter their control of such prisoners terminated.
Communications and orders specifying that their use was desired
by the armament industry or that prisoners were transmitted for
the armament industry are not in fact binding as to their ulti-
mate use. Their use subsequent to transfer was a matter over
which the field commander had no control. Russian prisoners of
war were in fact used for many purposes outside the armament
industry. Mere statements of this kind cannot be said to furnish
proof against the defendants for the illegal use of prisoners of
war whom they transferred. In any event, if a defendant is to
be held accountable for transmitting prisoners of war to the
armament industry, the evidence would have to establish that
prisoners of war shipped from his area were in fact so used.

Therefore, as to the field commanders in this case, it is our
opinion that, upon the evidence, responsibility cannot be fixed
upon the field commanders on trial before us for the use of pris-
oners of war in the armament industry.

In stating that the Hague and Geneva Conventions express
accepted usages and customs of war, it must be noted that certain
detailed provisions pertaining to the care and treatment of pris-
oners of war can hardly be so designated. Such details it is be-
lieved could be binding only by international agreement. But since
the violation of these provisions is not an issue in this case, we
make no comment thereon, other than to state that this judgment
is in no way based on the violation of such provisions as to Rus-
sian prisoners of war.

Most of the provisions of the Hague and Geneva Conventions,
considered in substance, are clearly an expression of the accepted
views of civilized nations and binding upon Germany and the
defendants on trial before us in the conduct of the war against
Russia. These concern (1) the treatment of prisoners of war;
(2) the treatment of civilians within occupied territories and
spoliation and devastation of property therein; and (3) the treat-
ment of Red Army soldiers who, under the Hague Convention,
were lawful belligerents.

We cite in this category the following rules from the Hague
Rules of Land Warfare :

535

“Article 4

“Prisoners of war are in the power of the hostile government,
but not of the individuals or corps who capture them.

“They must be humanely treated”.

***** * *

That part of Article 6 which provides —

“* * * The tasks shall not be excessive * * *”

That part of Article 8 which provides —

“Escaped prisoners who are retaken before being able to
rejoin their own army or before leaving the territory occupied
by the army which captured them are liable to disciplinary
punishment.

“Prisoners who, after succeeding in escaping, are again taken
prisoner, are not liable to any punishment on account of the
previous flight.”

From the Geneva Convention, that part of Article 2 which

provides —

“They must at all times be humanely treated and protected,
particularly against acts of violence, insults, and public curi-
osity.”

That part of Article 3 which provides —

“Prisoners of war have the right to have their person and
their honor respected. Women shall be treated with all the
regard due to their sex.”

Article 4 which provides —

“The power detaining prisoners of war is bound to provide
for their maintenance.

“Difference in treatment among prisoners is lawful only when
it is based on the military rank, state of physical or mental
health, professional qualifications, or sex of those who profit
thereby.”

That part of Article 7 which provides —

“Prisoners of war shall be evacuated within the shortest pos-
sible period after their capture, to depots located in a region far
enough from the zone of combat for them to be out of danger.”

These parts of Article 9 which provide that —

“Prisoners captured in unhealthful regions or where the
climate is injurious for persons coming from temperate regions,
shall be transported, as soon as possible, to a more favorable
climate” ;

and that —

“No prisoner may, at any time, be sent into a region where
he might be exposed to the fire of the combat zone, nor used to
give protection from bombardment to certain points or certain
regions by his presence.”

That part of Article 10 which provides —

“Prisoners of war shall be lodged in buildings or in barracks
affording all possible guarantees of hygiene and healthfulness.”

These parts of Article 1 1 which provide —

“The food ration of prisoners of war shall be equal in quantity
and quality to that of troops at base camps.”

and that —

“A sufficiency of potable water shall be furnished them.”

That part of Article 12 which provides that —

“Clothing, linen, and footwear shall be furnished prisoners of
war by the detaining power.”

That part of Article 13 which provides —

“Belligerents shall be bound to take all sanitary measures
necessary to assure the cleanliness and healthfulness of camps
and to prevent epidemics.”

Article 25 — “Unless the conduct of military operations so re-
quires, sick and wounded prisoners of war shall not be transferred
as long as their recovery might be endangered by the trip.”

Article 29 — “No prisoner of war may be employed at labors for
which he is physically unfit.”

That part of Article 32 which provides —

“It is forbidden to use prisoners of war at unhealthful or
dangerous work.”

That part of Article 46 which provides —

“Any corporal punishment, any imprisonment in quarters
without daylight and, in general, any form of cruelty, is for-
bidden.”

Article 50 which provides —

“Escaped prisoners of war who are retaken before being able
to rejoin their own army or to leave the territory occupied by
the army which captured them shall be liable only to disciplinary
punishment.

“Prisoners who, after having succeeded in rejoining their
army or in leaving the territory occupied by the army which

537

captured them, may again be taken prisoners shall not be liable
to any punishment on account of their previous flight.”

That part of Article 56 which provided —

“In no case may prisoners of war be transferred to peniten-
tiary establishments (prison, penitentiaries, convict prisons,
etc.) there to undergo disciplinary punishment.”

Under these provisions certain accepted principles of interna-
tional law are clearly stated. Among these applicable in this case
are noted those provisions concerning the proper care and mainte-
nance of prisoners of war. Also the provisions prohibiting their
use in dangerous localities and employment, and in this connec-
tion it should be pointed out that we consider their use by combat
troops in combat areas for the construction of field fortifications
and otherwise, to constitute dangerous employment under the con-
ditions of modern war. Under those provisions it is also apparent
that the execution of prisoners of war for attempts to escape was
illegal and criminal.

Also, it is the opinion of this Tribunal that orders which pro-
vided for the turning over of prisoners of war to the SD, a
civilian organization, wherein all accountability for them is shown
by the evidence to have been lost, constituted a criminal act, par-
ticularly when from the surrounding circumstances and published
orders, it must have been suspected or known that the ultimate
fate of such prisoners of war was elimination by this murderous
organization.

The contention of the defense as to the condition of many of
the Russian prisoners when captured is considered a defense as
far as it goes. No doubt many were in a deplorable condition due
to lack of food, poor clothing, wounds, sickness, and exhaustion
when captured. There is no question that for temporary periods
these conditions would bring about much hardship and many .
deaths regardless of the efforts of their captors. However, the
evidence in this case shows that hundreds of thousands of Russian
prisoners of war died from hunger, cold, lack of medical care, and
ill-treatment that were not a result of these conditions. It is true
that later on in the war Germany realized that she had lost for
herself a tremendous source of manpower which had become one
of the major problems of the German nation. Thereafter to some
extent her treatment of prisoners of war was based on the sounder
economic principle that it was better to work them to death than
to merely let them die. The great mass of Russian prisoners of
war did not die because of their condition at the time of their cap-
ture. The argument that the winter of 1941-42 was the coldest
winter in years in that area can hardly be alleged as an excuse

538

for the deaths of prisoners of war from cold. Cold winters have
certainly not been unknown in those parts of Europe where these
prisoners were kept in captivity. In fact, cold winters in those
parts are the rule and not the exception. Nor can it be said that
the German Army did not have food with which to maintain them.
In their progress through Russia they had seized the food supplies
of the people and there is no evidence in the record to show that
German soldiers at that time were dying from starvation. There
is evidence that in some cases there were epidemics of typhus in
the German Army but nothing to parallel the various epidemics
which broke out in the Russian camps. No doubt soldiers in the
German Army died in isolated cases from lack of medical supplies
and medical attention but the evidence in this case shows that
thousands of Russian prisoners of war died from lack of attention
while the German Army which held them was not materially suf-
fering from lack of either.

As regards the humanity of their treatment, the evidence in this
case discloses not only that humane treatment was not generally
required of German soldiers in dealing with Russian prisoners of
war, but that the directly opposite procedure was imposed upon
them by superior orders. The treatment of Russian prisoners of
war by the German Wehrmacht was a crime under international
law, and it is so found by this Tribunal.

Concerning the compulsory use of the civilian population, spoli-
ation, and devastation within occupied areas, the following pro-
visions of the Hague Convention are likewise cited as applicable
in this case :

Article 43 — “The authority of the legitimate power having
in fact passed into the hands of the occupant, the latter shall
take all the measures in his power to restore and ensure, as far
as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country.”

Article 46 — “Family honor and rights, the lives of persons,
and private property, as well as religious convictions and prac-
tice, must be respected.”

Article 47 — “Pillage is formally forbidden.”

Article 49 — “If, in addition to the taxes mentioned in the
above Article, the occupant levies other money contributions in
the occupied territory, this shall only be for the needs of the
army or of the administration of the territory in question.”
Article 50 — “No general penalty, pecuniary or otherwise,
shall be inflicted upon the population on account of the acts of
individuals for which they cannot be regarded as jointly and
severally responsible.”

8939 * 54—51 -36

539

That part of Article 52 which reads as follows :

“Requisitions in kind and services shall not be demanded from
municipalities or inhabitants except for the needs of the army
of occupation. They shall be in proportion to the resources of
the country, and of such a nature as not to involve the inhabi-
tants in the obligation of taking part in military operations
against their own country.”

That part of Article 53 which reads as follows:

“An army of occupation can only take possession of cash,
funds, and realizable securities which are strictly the property
of the state, depots of arms, means of transport, stores and
supplies, and generally, all movable property belonging to the
state which may be used for military operations.”

Under the Articles above quoted, it is apparent that the com-
pulsory labor of the civilian population for the purpose of carrying
out military operations against their own country was illegal.

Under the same Articles, the compulsory recruitment from the
population of an occupied country for labor in the Reich was
illegal.

It is conceded that this policy of recruitment of slave labor for
the Reich did not originate with the army. The army apparently
desired this source of labor for its own purposes.

The nature and the extent of this program of recruitment for
slave labor is shown by [Document 310-PS] Prosecution Exhibit
490. This document concerns the recruitment of the age groups
1926 and 1927 for labor in the Reich and applied alike to men and
women within these age groups. In other words, the Reich was
drafting boys and girls in some instances as young as 17 years
for slavery in a foreign country. The Sauckel plan for the mobi-
lization of foreign labor was based on compulsory requisitioning
from the populations of occupied territories. In fact, all the econ-
omy of the Reich became dependent for its labor to a large extent
upon these sources. This stupendous undertaking could not have
been effectively carried out without the cooperation of the military
authorities in the occupied territories. Hundreds of thousands of
the helpless population of the occupied territories were transferred
to the Reich under this program of labor recruitment.

The same principles of international law apply to a large extent
with regard to looting and spoliation. The difference is mainly
that in one case Germany required human beings and in another,
property for her own economy and the conduct of the war.

It is not contended that individuals of the German Army were
guilty to a larger extent than is inevitable in cases of this kind in

540

any army. The German Army, as has been pointed out, was on
the whole a disciplined army. The looting and spoliation shown
by the record was not that of individuals but looting and spoliation
by the German Government and the German Wehrmacht for the
needs of both. It was done on a larger scale than was possible by
individuals and the strictness of the prohibitions against individ-
uals in the army, as shown by the evidence in this case, seems to
have been sometimes based upon the idea that in looting, the indi-
vidual was not depriving the victim of the property but was
depriving the Reich and the Wehrmacht.

The doctrine of military necessity has been widely urged. In
the various treatises on international law there has been much
discussion on this question.

It has been the viewpoint of many German writers and to a
certain extent has been contended in this case that military neces-
sity includes the right to do anything that contributes to the win-
ning of a war. We content ourselves on this subject with stating
that such a view would eliminate all humanity and decency and
all law from the conduct of war and it is a contention which this
Tribunal repudiates as contrary to the accepted usages of civi-
lized nations. Nor does military necessity justify the compulsory
recruitment of labor from an occupied territory either for use in
military operations or for transfer to the Reich, nor does it jus-
tify the seizure of property or goods beyond that which is neces-
sary for the use of the army of occupation. Looting and spoliation
are none the less criminal in that they were conducted, not by
individuals, but by the army and the state.

The devastation prohibited by the Hague Rules and the usages
of war is that not warranted by military necessity. This rule is
clear enough but the factual determination as to what constitutes
military necessity is difficult. Defendants in this case were in
many instances in retreat under arduous conditions wherein their
commands were in serious danger of being cut off. Under such
circumstances, a commander must necessarily make quick deci-
sions to meet the particular situation of his command. A great
deal of latitude must be accorded to him under such circumstances.
What constitutes devastation beyond military necessity in these
situations requires detailed proof of an operational and tactical
nature. We do not feel that in this case the proof is ample to
establish the guilt of any defendant herein on this charge.

Concerning the treatment of Red Army soldiers, the [Annex to]
Hague Conventions provide:

541

“Article 1

“The laws, rights, and duties of war apply not only to armies,
but also to militia and volunteer corps fulfilling the following
conditions :

“1. To be commanded by a person responsible for his sub-
ordinates ;

“2. To have a fixed distinctive emblem recognizable at a dis-
tance ;

“3. To carry arms openly ; and

“4. To conduct their operations in accordance with the laws
and customs of war.

“In countries where militia or volunteer corps constitute the
army, or form part of it, they are included under the denomina-
tion ‘army’.”

This Article defines what constitutes a lawful belligerent.
Orders to the effect that Red Army soldiers who did not turn them-
selves over to the German authorities would suffer penalty of
being treated as guerrillas, and similar orders, and the execution
of Red Army soldiers thereunder, are in contravention of the rights
of lawful belligerents and contrary to international law.

It has been stated in this case that American occupational com-
manders issued similar orders. This Tribunal is not here to try
Allied occupational commanders but it should be pointed out that
subsequent to the unconditional surrender of Germany, she has
had no lawful belligerents in the field.

Judge Harding at this point will continue with the reading of
the judgment.

RESPONSIBILITY OF COMMANDERS

OF

OCCUPIED TERRITORIES

Judge Harding: The defense in this case as to the field com-
manders on trial has been partially based on the contention that
while criminal acts may have occurred within the territories under
their jurisdiction, that these criminal acts were committed by
agencies of the state with which they were not connected and
over whom they exercised no supervision or control. It is conceded
that many of these defendants were endowed with executive power
but it is asserted that the executive power of field commanders did
not extend to the activities of certain economic and police agencies
which operated within their areas; that the activities of these
agencies constituted limitations upon their exercise of executive
power.

542

In this connection it must be recognized that the responsibility
of commanders of occupied territories is not unlimited. It is fixed
according to the customs of war, international agreements, funda-
mental principles of humanity, and the authority of the com-
mander which has been delegated to him by his own government.
As pointed out heretofore, his criminal responsibility is personal.
The act or neglect to act must be voluntary and criminal. The term
“voluntary” does not exclude pressures or compulsions even to the
extent of superior orders. That the choice was a difficult one does
not alter either its voluntary nature or its criminality. From an
international standpoint, criminality may arise by reason that the
act is forbidden by international agreements or is inherently crim-
inal and contrary to accepted principles of humanity as recognized
and accepted by civilized nations. In the case of violations of
international agreements, the criminality arises from violation of
the agreement itself — in other cases, by the inherent nature of
the act.

War is human violence at its utmost. Under its impact excesses
of individuals are not unknown in any army. The measure of
such individual excesses is the measure of the people who compose
the army and the standard of discipline of the army to which they
belong. The German Army was, in general, a disciplined army.
The tragedy of the German Wehrmacht and these defendants is
that the crimes charged against them stem primarily from its
highest military leadership and the leadership of the Third Reich
itself.

Military subordination is a comprenhensive but not conclusive
factor in fixing criminal responsibility. The authority, both
administrative and military, of a commander and his criminal
responsibility are related but by no means coextensive. Modern
war such as the last war entails a large measure of decentraliza-
tion. A high commander cannot keep completely informed of the
details of military operations of subordinates and most assuredly
not of every administrative measure. He has the right to assume
that details entrusted to responsible subordinates will be legally
executed. The President of the United States is Commander in
Chief of its military forces. Criminal acts committed by those
forces cannot in themselves be charged to him on the theory of
subordination. The same is true of other high commanders in
the chain of command. Criminality does not attach to every indi-
vidual in this chain of command from that fact alone. There
must be a personal dereliction. That can occur only where the
act is directly traceable to him or where his failure to properly
supervise his subordinates constitutes criminal negligence on his
part. In the latter case it must be a personal neglect amounting

to a wanton, immoral disregard of the action of his subordinates
amounting to acquiescence. Any other interpretation of interna-
tional law would go far beyond the basic principles of criminal
law as known to civilized nations.

Concerning the responsibility of a field commander for crimes
committed within the area of his command, particularly as against
the civilian population, it is urged by the prosecution that under
the Hague Convention, a military commander of an occupied terri-
tory is per se responsible within the area of his occupation, re-
gardless of orders, regulations, and the laws of his superiors limit-
ing his authority and regardless of the fact that the crimes com-
mitted therein were due to the action of the state or superior
military authorities which he did not initiate or in which he did
not participate. In this respect, however, it must be borne in mind
that a military commander, whether it be of an occupied territory
or otherwise, is subject both to the orders of his military superiors
and the state itself as to his jurisdiction and functions. He is
their agent and instrument for certain purposes in a position from
which they can remove him at will.

In this connection the Yamashita case has been cited. While not
a decision binding upon this Tribunal, it is entitled to great respect
because of the high court which rendered it. It is not, however,
entirely applicable to the facts in this case for the reason that the
authority of Yamashita in the field of his operations did not appear
to have been restricted by either his military superiors or the
state, and the crimes committed were by troops under his com-
mand, whereas in the case of the occupational commanders in these
proceedings, the crimes charged were mainly committed at the
instance of higher military and Reich authorities.

It is the opinion of this Tribunal that a state can, as to certain
matters, under international law limit the exercise of sovereign
powers by a military commander in an occupied area, but we are
also of the opinion that under international law and accepted
usages of civilized nations that he has certain responsibilities
which he cannot set aside or ignore by reason of activities of his
own state within his area. He is the instrument by which the
occupancy exists. It is his army which holds the area in subjec-
tion. It is his might which keeps an occupied territory from re-
occupancy by the armies of the nation to which it inherently
belongs. It cannot be said that he exercises the power by which
a civilian population is subject to his invading army while at the
same time the state which he represents may come into the area
which he holds and subject the population to murder of its citi-
zens and to other inhuman treatment. The situation is somewhat
analogous to the accepted principle of international law that the

544

army which captures the soldiers of its adversary has certain fixed
responsibilities as to their care and treatment.

We are of the opinion, however, as above pointed out in other
aspects of this case, that the occupying commander must have
knowledge of these offenses and acquiesce or participate or crim-
inally neglect to interfere in their commission and that the offenses
committed must be patently criminal. But regardless of whether
or not under international law such responsibility is fixed upon
him, under the particular facts in this case, responsibility of the
commanders in question rests upon other factors. In this respect
we quote certain provisions of the handbook for the general staff
in wartime, pertinent to executive power [ NOKW-1878 , Pros.
Ex. U2} :

“5. The exercising of executive power by military command-
ers is governed by No. 20-24 of Army Manual 90 (of the army
in the field).

“6. If a zone of operation is determined, the Commander in
Chief of the Army and the commanders in chief of the armies
receive at the declaration of a state of defense or at the declara-
tion of a state of war authority for exercising executive power
in this territory, without further order (pars. 2 and 9 of the
Reich Defense Law).

“In other cases, the Fuehrer and Supreme Commander of
the Wehrmacht can transfer such authority for exercising exec-
utive power to the Commander in Chief of the Army and the
commanders in chief of the armies.

“7. The executive power comprises the entire state power
including the right of issuing laws without prejudice to the
independence of jurisdiction. Those persons invested with
executive power can decree local orders affecting the territory
in which authority for exercising has been turned over to them
or transferred to them, set up special courts, and issue instruc-
tions to the authorities and offices competent in the territory
named, with the exception of the Supreme Reich Authorities,
the Supreme Prussian Provincial Authorities, and the Reichslei-
tung of the NSDAP.

“8. The Supreme Reich Authorities, Supreme Prussian Pro-
vincial Authorities, and the Reichsleitung of the NSDAP can
decree orders for the territory into which executive power has
been transferred, only by agreement with the persons invested
with executive power. Their right of issuing instructions to
the authorities and offices subordinated to them remains intact.
Nevertheless the right of issuing instruction by the person
invested with executive authority takes precedence.

545

“9. Authority for exercising executive power is incumbent
only on the persons invested. It can be transferred further
only in as much as an authorization is ordered thereto actually
or legally.

“Accordingly persons invested with executive power are
authorized to entrust subordinated offices with the execution
of individual missions.

“10. The laws, decrees, etc., which are valid at the transfer
of the executive power retain their validity so long as the person
invested with executive power encounters no contrary order.

“11. The Commander in Chief of the Army regulates the exer-
cising of executive power through the commanders in chief of
the armies.

“The revision of questions which occur in the exercising of
executive power does not fall into the realm of work of the army
judges. The civilian commissioner with the High Command of
the Army is assigned for that purpose to the Commander in
Chief of the Army; the chiefs of the civil administration, to the
commanders in chief of the armies. Persons invested with
executive power are authorized however, to call in the army
judges assigned to them as counselors, especially in the decree-
ing of legal orders of penal law content.”

It is therefore apparent that executive power under German law
is the exercise of sovereign powers within an occupied area con-
ferred upon a military commander by the state. The defense has
undertaken to minimize to a large extent this wide authority but
in view of the above document, it does not appear to be the mere
shadow of authority contended. In fact, these provisions fix upon
an occupying commander certain responsibilities as to the preser-
vation of law and order within his area.

The contention of defendants that the economic agencies were
excluded from their exercise of executive power is disproved by
various documents which will hereafter be cited in considering
the guilt or innocence of defendants on trial. And regardless of
that fact, the proof in this case also establishes a voluntary co-
operation of defendants on trial with these economic agencies
in the furtherance of their illegal activities.

The defense contends that the activities of the Einsatzgruppen
of the Security Police and SD were beyond their sphere of author-
ity as occupational commanders because the state had authorized
the illegal activities of these police units and so limited the execu-
tive power of the occupational commanders. However, the occu-
pational commanders in this case were bearers of executive power
and, one and all, have denied receipt of any orders showing, or

546

knowledge of, a state-authorized program providing for the illegal
activities of the Einsatzgruppen.

One of the functions of an occupational commander endowed
with executive power was to maintain order and protect the
civilian population against illegal acts. In the absence of any
official directives limiting his executive powers as to these illegal
acts within his area, he had the right and duty to take action
for their suppression. Certainly he is not in a position to con-
tend that these activities were taken from his field of executive
power by his superiors when he knew of no such action on
their part.

The sole question then as to such defendants in this case is
whether or not they knew of the criminal activities of the Einsatz-
gruppen of the Security Police and SD and neglected to suppress
them.

It has been urged that all of the defendants in this case must
have had knowledge of the illegal activities of the Einsatzgruppen.
It has been argued that because of the extent of their murder
program in the occupational areas and by reason of the communi-
cations available to the high commanders, and the fact that they
were in command of these areas, they must necessarily have
known of this program. The record in this case shows that some
90,000 so-called undesirable elements were liquidated by Einsatz-
gruppe D, largely within the area of the 11th Army. It also
shows that some 40,000 Jewish women and children were liqui-
dated in Riga which at that time was in the Commissariat Ost-
land, immediately to the rear of the Army Group North. The
Einsatzgruppen and their subordinate units were organized to
carry out this program within the operational areas of the army.

It is true that extermination of such a large number of people
must necessarily have come to the attention of many individuals,
and, also, it is established that soldiers in certain areas partici-
pated in some of these executions.

In many respects a high commander in the German Army was
removed from information as to facts which may have been
known to troops subordinate to him. In the first place, these
troops were in many instances far removed from his headquarters.
In addition the common soldiers and junior officers do not have
extensive contacts with the high commanders and staff officers.

Another factor must also be taken into consideration in con-
nection with the activities of the Einsatzgruppen. This is the
dual nature of its functions. On the one hand, it was charged
with the criminal liquidation of certain elements; on the other
hand it exercised legitimate police activities in connection with

547

the security of the rear communications of the armies, in which
capacity it operated largely against guerrillas.

Another factor was the effort made to keep the criminal activi-
ties of these police units from the Wehrmacht. In the early
stages of the war many of their mass executions, as is shown by
the record, occurred under the guise of pogroms instigated by the
SIPO and SD but actually carried out by local inhabitants. Racial
hatreds and pogroms have been known in Europe for centuries.
Pogroms occurred at the time of the Crusades and have recurred
in the history of Europe, even in our time. It is established that
pogroms were used by Einsatzgruppe A which operated in the
area of the Army Group North and in the Commissariat Ostland,
as a vehicle for their criminal activities. At times it is shown
such pogroms were participated in by local militia which neces-
sarily owed its existence to the German Army.

Another source of information was reports submitted by Ein-
satzgruppen to army headquarters, but it is noted that such
reports concerned mainly activities within their legal sphere of
combating partisans and the maintenance of security. However,
such reports showed the execution of Jews, gypsies, and others
as specific classifications of those liquidated. Reports of the mass
murders carried out by these police units, however, were sub-
mitted through their own channels to the RSHA in Berlin and
were not submitted to army headquarters or through such head-
quarters.

An army commander has two reliable and extensive official
sources of information (1) superior orders, (2) reports of sub-
ordinate units.

It is true that no superior orders transmitted to the defendant
field commanders show the mass murder program of the Third
Reich have been introduced in evidence with the exception of the
Commissar Order in which the executing agency was not the SD
but the army itself.

Official reports of subordinate units normally furnish a vast
amount of information. Reports of individual instances of illegal
acts may however not be submitted to higher headquarters if for
no other reason than that the suppression of such acts is the
province of the subordinate and their occurrence might be a sub-
ject for criticism. Also the staff of high operational commands
engaged in extensive combat operations is much less likely to
bring such matters to the attention of the commander than the
staff of a lower command.

Other factors to be considered as to the knowledge of criminal
acts of the SIPO and SD by defendants is the time, the localities,

548

the combat situation, the extent of the activities, and the nature
of the command.

This, in brief, summarizes the main factors considered and the
sources of knowledge appraised in determining the criminal
responsibility of the defendants in this case in connection with
activities of the Einsatzgruppen of the SIPO and SD. From this
discussion it is apparent we can draw no general presumption as
to their knowledge in this matter and must necessarily go to the
evidence pertaining to the various defendants to make a deter-
mination of this question.

And it is further pointed out that to establish the guilt of a
defendant from connection with acts of the SIPO and SD by
acquiescence, not only must knowledge be established, but the time
of such knowledge must be established.

When we discuss the evidence against the various defendants,
we shall treat with greater detail the evidence relating to the
activities of the Einsatzgruppen in the commands of the various
defendants, and to what extent, if any, such activities were known
to and acquiesced in or supported by them.

HITLER AND THE WEHRMACHT

The defense has asserted that there was considerable opposi-
tion to Hitler’s plans and orders by the higher military leader-
ship. General Franz Haider, who was chief of the German gen-
eral staff from 1938 to 1942, testified that Hitler’s plans to invade
the Sudetenland caused the formation of a plot for a coup to
overthrow Hitler, but that this plot was abandoned because of
the Munich Pact. Be this as it may, the success of Hitler at
Munich increased his prestige with all circles of the German
people, including the higher military leadership.

In 1939, Hitler advised certain of the high military leaders
of his decision to attack France by violating the neutrality of
the Low Countries. On 11 October 1939, von Leeb wrote his
Commander in Chief, von Brauchitsch, inclosing a memorandum
prepared by him advising against this course of action. In it
he argues that the invasion would develop into a long drawn-out
trench warfare, and he continued [ von Leeb 39a, von Leeb Defense
Ex. 39 ] :

«* * * Besses, we will not be in a position to rally allies to
our cause. Even now, Italy is sitting on the fence, and Russia
has accomplished everything it had aimed at by virtue of our
victories, and by this has again become a predominant and
directly decisive factor as far as Central Europe is concerned.
Furthermore, Russia’s attitude remains uncertain in view of

549

its continued diplomatic relations to the Western Powers. The
more we tie ourselves down in the West the more freedom the
Russians will have for their decisions. On the other hand,
Belgium and, in the course of the years, the United States of
America as well, will join our enemies, and the Dominions
will exert all their strength to give effective assistance to the
mother country.”

Then, in discussing the political repercussions which would
follow from this proposed action, he said :

“Any violation of Belgium’s neutrality is bound to drive that
country into the arms of France. France and Belgium will
then have one common foe, Germany, which for the second time
within 25 years assaults neutral Belgium! Germany, whose
government solemnly vouched for and promised the preserva-
tion of and respect for this neutrality only a few weeks ago!
I have already elaborated under paragraph 1 on the fact that
in such a case it is highly probable that France will immedi-
ately rush strong forces to the aid of the Belgians, which means
that there will be heavy fighting already on Belgian soil.

“If Germany, by forcing the issue, should violate the neutral-
ity of Holland, Belgium, and Luxembourg a neutrality which
has been solemnly recognized and vouched for by the Ger-
man Government, this action will necessarily cause even those
neutral states to reverse their declared policy towards the
Reich, which up till now showed some measure of sympathy
for the German cause. The Reich which cannot count on Italy’s
or Russia’s military assistance, will become increasingly iso-
lated also economically. Especially North America, whose
population easily falls for such propaganda slogans, will be-
come more inclined to submit to England’s and France’s
influence.”

Then on 31 October 1939, von Leeb wrote von Brauchitsch a
letter in which he said :

“I consider the military annihilation of the English, French,
and Belgians a goal which cannot be attained at present. For
only if they are annihilated, if attacked, would they be ready
for peace.

“To associate the successes in the East with the wishful
thinking in regard to the West would be a fatal deviation from
reality.

“In the political field, we have Poland as security in our
hands, don’t we? If that doesn’t suit our opponents, then let
them attack.

550

“The whole nation is filled with a deep longing for peace.
It doesn’t want the impending war and regards it with no
feeling of sympathy whatsoever. If the Party offices are re-
porting anything else, they are withholding the truth. The
people are now looking forward to having peace result from
the policies of their Fuehrer, because they feel quite instinc-
tively that it is impossible to destroy France and England, and
that any more extensive plans must therefore be held in abey-
ance. As a soldier, one is forced to say the same.

“If the Fuehrer were now to make an end to the present
situation, under conditions which were in some measure accept-
able no one would interpret this as a sign of weakness or yield-
ing but rather as recognizing the true status of power. The
granting of an autonomy for Czechoslovakia and allowing the
remainder of Poland to stand as a nation would probably meet
with the complete understanding of the entire German people.

“The Fuehrer would then be honored as a prince of peace, not
only by the entire German people, but assuredly also by large
parts of the world as well.

“I am prepared to stand behind you personally to the fullest
extent in the days to come and to bear the consequence desirable
or necessary.”

In spite of this, the plans went on for the invasion which,
however, was delayed until the following May. Von Leeb testified
this delay was brought about by the efforts of von Bock, Haider,
and himself, in the hope that the additional time might allow a
diplomatic settlement. The reasons given for the delay were
purely military, viz, that the roads were impassable, the equip-
ment defective, etc. The moral phase was not considered.

So it is clear there was some opposition among the military
leadership to Hitler’s plans, but the tragedy of it is that these men,
in spite of their opposition, allowed themselves to be used by
him. Von Leeb was asked by a member of the Tribunal why it
was this leadership was impotent and helpless against Hitler,
to which he replied (Tv. pp. 2422-2423) :

“Hitler was a demon, he was a devil. General Haider has
testified here that you couldn’t know what was going on in his
mind. That, perhaps, is how it happened that those wills which
were opposing this one will were too weak to be successful.
Above all this will was represented in our top level leadership
but we could not get at him. There was no way of convincing
Hitler. He knew everything better than everybody else, and
that is how disaster took its course.

“If now in retrospect you look back on the whole situation,

551

one might perhaps think that we, the high military leaders,
should have formed a more united front in opposition to Hitler.
Let’s perhaps take the following case. Herr von Brauchitsch and
the three of us, the three army group commanders, one day
confronted Hitler and told him, ‘So far and no further. Be-
hind us is the whole of the German Army’. I don’t believe that
that would have made a strong impression on Hitler. He
would have had the four of us arrested and put into a con-
centration camp.”

The testimony of General Haider, referred to by von Leeb, was
in response to a request that he give briefly his impression of
Hitler, and is as follows (TV. p. 2003 ) :

“This is a very difficult task. A personality which was so
unusual is difficult to sketch with very few words. The picture
which I gained of Hitler is as follows: An unusual power of
intellect; an amazingly quick comprehension, but not a trained
person who could adapt himself to logical lines of thought; a
person with very strong emotional tendencies; his decisions
were conditioned by what he called intuition, that is, his
emotions, but no clear logically thought-out considerations ; his
intellect also included an amazing power of imagination and
phantasy which in an astonishing degree had its repercussion
in his lines of thought or events; substantial parts of his
character were a tremendous tenacity and energy of will power
which also enabled him to surmount all obstacles, even in minor
matters. The thing that most impressed me about Hitler was
the complete absence of any ethical or moral obligations; a
man for whom there was no limits which he could not transcend
by his action or his will ; he knew only his purpose and the ad-
vantage that he pursued ; that for him was the imperative call.
As far as it seemed to me, he was a very lonely man who lacked
the capacity to enter into personal contact with other human
beings and thus to relax and to release his personality. He was
thus always torn by tension which made cooperation with him
extremely difficult. I was not prepared for your question, Your
Honor. This is a question about which many books will yet
be written, and I shall be grateful to Your Honors if you
would be satisfied with this brief sketch of mine.”

In the final statement of General von Leeb* in behalf of all the
defendants, he referred repeatedly to the difficulties confronting
them, saying:

“However, in the Third Reich, under the dictatorship of

* Final statement is reproduced in Section X.

552

Hitler, we found ourselves faced with a development which
was in contrast to our principles and nature. It is not true
to say that we as officers changed — the demands made of us
became different.

“We sought to oppose this evolution under the Third Reich,
but we lacked the means which might have been effective under
a dictatorship. ,,

Again he said:

“In regard to Hitler’s instructions, which went against our
humane and soldierly feelings, we were never merely his tools
without a will of our own. We did oppose his instructions as
far as we deemed this to be possible or advisable, and we have
toned their wording down and rendered them ineffective or
mitigated them in practice.”

To von Leeb, Hitler was a “demon * * * a devil,” and to Haider
he had “a complete absence of any ethical or moral obligation.”
The demands he made of the defendants may have been “in con-
trast to their principles and natures,” and against their “humane
and soldierly feelings,” but the inescapable fact remains that in
part, at least, if not to the whole, they permitted their consciences
and opinions to become subordinate to his will, and it was this
which has placed such great and ineradicable shame upon the
German arms.

We realize the feelings of professional pride, of ambition to suc-
ceed in their profession of arms, of fear for their personal safety
or of reprisals against their families, their love of country, their
soldiers’ concept of obedience, and indeed, the ingrained respect
of the German for those in authority over him, were factors in
their decisions. We are aware of the tendency towards degenera-
tion of “civilized” warfare in the modern concept of “total” war,
and of the war madness that engulfs all people of belligerent
powers.

Those considerations cannot excuse, but it is proper to con-
sider and judge in any case the offenses charged in the light of
their historical and psychological background and in their con-
nections with all surrounding circumstances.

WILHELM VON LEEB

Field Marshal Wilhelm von Leeb was born in 1876, entered
service in 1895, and had various promotions until he became a field
marshal in 1940. He was Commander in Chief of Army Group
North in the campaign against Russia until 16 January 1942,
when he resigned primarily because of interference in technical

553

matters by Hitler and was then placed in the Fuehrer reserve.

The German Army, prior to the establishment of army groups,
was based on Heeres or ground forces which were composed of
armies and subordinate units. The armies were both adminis-
trative and operational. When the army group was established,
the staff provided was much smaller than the staff of the sub-
ordinate armies, according to the testimony of von Kuechler,
one-third or one-half the size of the staff of an army. Judicial
authority did not extend through the commander of the army
group. He had no representative of the quartermaster general
who directly controlled matters of supply. The quartermaster
general did not operate directly through the army group but
through the armies and army group rear areas where there were
representatives of his department on the staff.

A commander of the army group in the early stages of its de-
velopment had no staff of experts for supervision of prisoner of
war affairs which was directly under the quartermaster general
and his subordinates. Nor did the economic agencies of the Reich
operate through the army group. The armies and commanders of
army group rear areas had experts on their staffs to deal with
these matters.

During the period of the defendant von Leeb’s command of
Army Group North the duties imposed upon him were almost
exclusively operational and his headquarters and staff were
strictly operational in their functions.

Executive power at the beginning of the Russian campaign
was conferred directly upon the army commanders and the com-
manders of the army group rear areas. It was provided, how-
ever, that the commander in chief of an army group might issue
orders to his subordinates in the field of executive power. In
other words, his authority in this field was more in the nature
of a right to intervene than a direct responsibility.

This power to intervene followed the general pattern of his
command authority over subordinate units. Nevertheless, author-
ity and responsibility as to many administrative matters were
directly vested in von Leeb’s subordinates. It was common for the
OKH and staff officers of the OKH to issue orders directly to
these subordinates without such orders always being submitted
to army group headquarters for information. In other instances,
orders addressed to subordinate units were sent through the army
group. In such cases the army group headquarters acted as a
forwarding agency, with implementation of orders resulting from
their being put into command channels, and not from action on
the part of the defendant.

The defendant’s army group had moved from East Prussia to

t»54

Leningrad. He had under his command five to six hundred
thousand soldiers. His operations were of great magnitude.
They started with the opening of the Russian campaign on 22
June 1941, and his activities terminated officially on 16 January
1942. In this comparatively brief period of time he had moved
a great army over a vast territory under the arduous conditions
of combat. As stated, his function was operational. Many ad-
ministrative duties had been left to his subordinate armies and
his army group rear area. He and his staff alike would have the
right to assume that the commanders entrusted with such admin-
istrative functions would see to their proper execution. Under
such conditions it must be accepted that certain details of activi-
ties within the sphere of his subordinates would not be brought
io his attention.

The evidence establishes that criminal orders were executed
by units subordinate to the defendant and criminal acts were car-
ried out by agencies within his command. But it is not considered
under the situation outlined that criminal responsibility attaches
to him merely on the theory of subordination and over-all com-
mand. He must be shown both to have had knowledge and to
have been connected with such criminal acts, either by way of
participation or criminal acquiescence.

Aside from the charge of crimes against peace heretofore dis-
posed of in this opinion, the charges against him relate to the
period he was Commander in Chief of Army Group North. We
think these charges may be broken down into the following general
headings: (1) The Commissar Order ; (2) crimes against prisoners
of war; (3) The Barbarossa Jurisdiction Order; (4) crimes
against civilians; (5) pillage of public and private property;
(6) criminal conduct pertaining to the siege of Leningrad. We
shall discuss these seriatim.

1. The Commissar Order — We have discussed the criminality
of the Commissar Order. Von Leeb was present at the meeting
held by Hitler in March 1941 when the proposed extermination
of the commissars was announced. He considered this to be in
violation of international law and, as well, to be stupid in that it
tended to defeat its own purpose. He discussed the matter with
von Brauchitsch and lodged a protest with him. Von Brauchitsch
assured him he would do all he could to prevent the issuance
of the order but notwithstanding this, it was later issued by the
OKH. Von Leeb as Commander of Army Group North, and von
Bock of Army Group Center, and von Rundstedt of Army Group
South were opposed to it. Von Leeb made further protest to von
Brauchitsch on the occasion of the latter’s visits in July and Sep-
tember 1941 and likewise protested to Keitel on two occasions.

893964—51 37

555

Keitel replied he would do his best to obtain a cancellation of the
order. Later, pursuant to the objection made by the commanders
of the army groups, General Mueller, General for Special Assign-
ments under Commander in Chief of the Army, von Brauchitsch,
wrote the OKW on 23 September 1941 as follows :

“It is requested to check on the necessity of the carrying out
of the ‘Commissar’ Decree in its present form, considering the
development of the situation. Commanders, commanding offi-
cers and the troops themselves report that the will to fight on
the part of the Russians could be weakened if the commissars,
who no doubt are the pillars of the embittered and stubborn
resistance would find it easier to give up the fight, to surrender
or to desert.

“At present the prevailing situation is such that every com-
missar faces his death in any case ; that is why a large number
of them is fighting to the last and also forces the Red Army
soldiers to resist stubbornly by the most brutal means.

“The combat situation being what it is at present, when
here and there the Russian side shows a slight weakening due
to the large losses, the diminishing supply of personnel and
material, the mixing of units and the indecisiveness of the
leadership, a paralysis of the will to fight generally by breaking
the resistance of the commissars might have a not inconsid-
erable success, and under circumstances may save much blood.

“The achievement of the goal should be attempted in proper
form by all kinds of propaganda by varied means.

“The Commander in Chief of the Army also believes that the
above views which have been reported to him personally by all
army groups deserve consideration from a military point of
view also , and a reconsideration of the treatment of the com-
missars accorded to them up to now seems expedient to him! }

It will be noted this recommendation is based wholly upon mili-
tary considerations without any discussion of the moral phase
which of course would not have interested Hitler. This recom-
mendation was submitted to Hitler and a notation thereupon was
made in Jodi’s writing, as follows: “The Fuehrer has refused any
change in the decree concerning treatment of Russian commissars
issued up to now.”

It is apparent that Mueller’s letter corroborates von Leeb’s tes-
timony regarding the opposition to this order by the commanders
in chief of these army groups.

When this order was issued, it was directed by OKH to the
armies in these three groups who, however, received copies for
informational purposes. In other words, the army group had

556

nothing to do with the passing on of this order to subordinate
units beyond the administrative functions of forwarding it to
them.

However, in addition to his protests to his superiors, von Leeb
discussed this order with subordinate commanders and let them
know of his opposition to it. He also mentioned the maintenance
of discipline order issued by von Brauchitsch in an effort to
thwart as far as he could the enforcement of the Commissar
Order.

As a practical purpose, what other action was open to him? He
could not revoke this order coming as it did from his superiors,
even from the head of the state. Had he undertaken to do so,
this would have been a flagrant disobedience of orders. In dis-
cussing the resignation, he said :

“* * * In addition, as a commander, I knew that all com-
manders I talked to were against this order and therefore I
hoped that at least it would not be carried out in its full meas-
ure, and if I had resigned at that time then I would have saved
myself in the cheapest manner possible, but at the same time I
would have given up the struggle against Hitler, and for the
rest such an application for resignation would probably not
have made the slightest impression on Hitler. In addition it
would probably have become known why I resigned because I
couldn’t suddenly say, ‘I am ill, I can’t go on any longer.’ ”

He was then asked as to his present impressions about this
question, to which he replied :

“I have had ample time and opportunity to think about this
order and about what we did at that time under the pressure
of responsibility, and here I must admit I don’t know even
today any better way. At that time as far as it was possible
at all, we tacitly sabotaged the order and all depended on our
doing it tacitly. I really don’t know how we could do it dif-
ferently today.”

This order had been passed down to his subordinate units, the
18th Army under von Kuechler, the 16th Army under Busch, and
the 4th Panzer Group under Hoepner. And in spite of von Leeb’s
attitude, the reports of units in these subordinate commands indi-
cate the murder of many of these functionaries. It may be that
in some instances the figures were fictitious or exaggerated, but
in spite of this, we find there were many cases of these atrocities.
But we cannot find von Leeb guilty in this particular. He did
not disseminate the order. He protested against it and opposed
it in every way short of open and defiant refusal to obey it. If

557

his subordinate commanders disseminated it and permitted its
enforcement, that is their responsibility and not his.

2. Crimes against prisoners of war — During the period of von
Leeb’s command of Army Group North, prisoners of war in his
area were under the general supervision of the quartermaster
general. He in turn was subject to the supervision of the com-
mander in chief of the OKH, at that time von Brauchitsch, who in
turn was subject to the over-all command of Hitler through the
OKW. The quartermaster general carried out his functions
through subordinates in the armies and the army group rear
areas. In both there were officers subordinated in part to him but
primarily subordinated to the commander of the armies and the
army group rear areas to whose staffs they belonged. Respon- I
sibility for prisoners of war affairs was therefore directly vested
in the commanders of the armies and of the army group rear
areas. Direct responsibility in these matters bypassed the com-
mander in chief of the army group. While he had the right to
issue orders to his subordinates concerning such matters, he also
had the right to assume that the officers in command of those
units would properly perform the functions which had been en-
trusted to them by higher authorities, both as to the proper care
of prisoners of war or the uses to which they might be put. He
also had the right as heretofore pointed out, to assume that cer-
tain uses to which they were put were legal under the conditions
existing in the war with Russia. As we have stated, their use in
dangerous occupations or in dangerous localities was obviously
illegal under international law but there is no substantial evidence
that such illegal uses of prisoners of war were ever brought to
the attention of the defendant.

The only evidence that the use of Russian prisoners of war to
clear away mines was ever called to the attention of the defendant
is contained in [prosecution] Rebuttal Exhibit 3, NOKW-3337,
book 1, page 4. This document states that:

“This morning the CinC of Army Group North visited the
Panzer group.

“The essential content of the conference was about as fol-
lows:”

The pertinent entry reads:

“* * * Because of the many mines laid in the houses they are
not yet being entered (a number of accidents). Prisoners are
used to clear away the mines.”

This document was signed by Golfing, Major, GSC, Liaison Officer
OKH, with Panzer Group 4.

558

It is considered that this entry is too vague and subject to too
many interpretations to establish that the defendant von Leeb
was advised of this use of prisoners of war and consented thereto.

To prove von Leeb’s knowledge of the neglect of prisoners of
war it is urged that his chief of staff, Brennecke, attended a con-
ference at Orsha on 13 November 1941, where the question of
food supplies of prisoners of war was broached by the chief of
staff of the Army Group Center. It is to be noted that the record
of this conference is found in the files of the 18th Army, one of
the units subordinate to von Leeb and directly responsible for
prisoner of war affairs. The report in question on this meeting,
however, merely states that Army Group Center “points out in
particular that the prisoners of war actually constitute necessary
additional labor, were, however, unable to work in their present
condition, but fell to a large extent into a state of exhaustion.”

Nothing appears in this document as to the condition of pris-
oners of war within the area of the Army Group North, nor does
it appear that any report was made to the defendant von Leeb
concerning the matter.

It is also urged that the defendant must have known of the
neglect of prisoners of war from seeing them upon the roads.
This is a broad assumption. The condition of these prisoners on
the road as heretofore pointed out might well have been due to
their condition when captured and not to any neglect of their
captors at that time.

A careful examination of all the evidence on this subject does
not establish either that the defendant von Leeb was guilty of
neglect of prisoners of war or responsible for their improper use
within the area of his command.

There is proof in the record that Red Army soldiers were
illegally executed within the area of the defendant von Leeb and
to show his connection therewith and responsibility therefor, our
attention has been invited to certain exhibits.

The first of these is an order of 13 September 1941. An ex-
amination of this exhibit shows an order issued by the general for
special assignments with the Commander in Chief of the Army
to the 6th Army which was not under von Leeb’s command. This
order was sent to army groups for information. From these
facts neither transmittal via the defendant von Leeb nor enforce-
ment of this order can be inferred.

A further order of the OKH, signed von Brauchitsch, dated 25
October 1941, is also called to our attention, and it is stated that
this was obviously distributed by the Army Group North in view
of the divisional order of the 12th Infantry Division of the 16th
Army which was part of the Army Group North, and a some-

559

what similar order of the 281st Security Division, which was
under the command of the rear area of Army Group North.
However, examination of these exhibits shows neither the actual
order which was supposed to have been distributed by the defend-
ant von Leeb nor that such an order was ever transmitted by him
to the channels of command. The order itself does not in fact
show the distribution made of the order, or that it was in fact
ever distributed.

We are therefore unable to find from the evidence that the
defendant von Leeb was criminally connected with, knew of,
or participated in the illegal execution of Red Army soldiers
within his area.

3. The Barbarossa Jurisdiction Order — This was a Fuehrer
order received by the army group under Leeb’s command. There
is nothing to show that it was ever directed to subordinate units
under him. It has been contended that this was an order per-
taining to judicial authority and would not concern an army group
and therefore would have been transmitted direct to those com-
manders who had judicial authority. Examination of the order
itself however shows that only in part did it pertain particularly
to judicial authority. Basically, it was an order pertaining to
the conduct and discipline of troops and of such a nature to be
of. the highest significance to any officer in command of troops,
including the army group commanders. The order itself charges
troop officers with the responsibility of informing subordinate
officers.

An entry in the war diary of the Army Group North shows that
it was transmitted with the OKH order of 1 June 1941 to sub-
ordinate units. There is no evidence in the record to show that
the defendant von Leeb expressed more than a disapproval of
the order and that was on the basis that it threatened the disci-
pline of the army. We must conclude from the evidence that this
order was put into the chain of command by von Leeb’s action.

It was a criminal order, at least in part. It was further an
order that was at best ambiguous in respect to the authority
conferred upon a junior officer to shoot individuals who were
merely suspected of certain acts. There is nothing to show that
in the transmittal of this order, it was in any way clarified or
that instructions were given in any way to prevent its illegal
application. The evidence establishes that von Leeb implemented
this order by passing it into the chain of command. Coming
directly through him in the chain of command, it carried the
weight of his authority as well as that of his superiors. The
record in this case shows that it was criminally applied by units
subordinate to him. Having set this instrument in motion, he

560

must assume a measure of responsibility for its illegal application.

U. Crimes against civilians — This charge derives from the
activities of Einsatzgruppe A which was assigned to and operated
within the area of the Army Group North.

With regard to Field Marshal von Leeb’s responsibility for
crimes committed by the Einsatzgruppen within his area of com-
mand, as we have stated, it would be immaterial whether he
knew that his government was carrying out a program of mass
murder and cooperated with it, or whether he was unaware that
there was such a program entrusted to the police by the authority of
the state but still permitted acts of mass murder to be carried out.

It is urged that von Leeb knew of the extermination program
of the German Government entrusted to the Einsatzgruppen. To
prove this, three documents have been called to our attention.
The first of these is an OKH order of 28 April 1941 ; the second
is an OKH order of 9 August 1941. Both of these orders were
shown to have been received by the Army Group North, and it
can be presumed that communications from this source would be
brought to the attention of the commander of an army group.
However, neither of these documents shows that extermination
program of the Third Reich. The third document, upon which
his knowledge of such a program is alleged to have been based,
is [NO-3422] Prosecution Exhibit 367. The significant part of
the document is found on page 214 of document book 6-G. This
was an enclosure to an operational order from the SIPO and SD
concerning the use of the Einsatzkommandos. This inclosure,
dated 7 October 1941, is referred to on page 209 where it is said
that directives were completed in agreement with the High Com-
mand of the Army. However, there is nothing to show that the
inclosure was ever transmitted to the Army Group North or
that it was not in fact a draft of a contemplated order. It is a
fixed rule of interpretation that an ambiguous document must be
construed most favorably to the defendant. While this document
definitely shows illegal activities of the Security Police, the proof
does not establish that it was ever received by the defendant
von Leeb.

The proof relied upon to show his knowledge of these criminal
acts of the Einsatzgruppen against the civilian population within
the area of his command is in part contained in reports of various
officers of Einsatzgruppe A to their superiors in Berlin. These
reports were not sent to von Leeb nor through his headquarters.
They are evidence to establish that certain extermination activi-
ties were carried out by this organization. However, they are of
a nature which must be viewed with careful scrutiny. In many
respects as to time and place they are extremely vague. A report

561

asserts that 135,000 people had been liquidated by the Einsatz-
gruppe A but where these liquidations occurred is subject to
considerable doubt. We know from other proof that some 40,000
Jews were liquidated in Riga, apparently by Einsatzgruppe A,
but this liquidation occurred in the territory under the Reich
Commissar Ostland, and outside the territory of the defendant.

Other than the mass liquidations which occurred at Kovno, the
evidence does not establish any liquidations within his area which
were brought to the attention of the defendant. This action, ap-
parently inspired by the Einsatzgruppen, was, however, carried
out as a pogrom, credited to a local self-defense organization of
Latvians. Hearing of this action, von Leeb took action to prevent
any recurrence of a similar nature within the area of the 16th
Army where Kovno was located.

Reports containing incidents of illegal executions by the SIPO
in connection with security operations were made from sub-
ordinate units in von Leeb’s command to the army group rear
area, armies, and corps headquarters. But it is not established
that these reports were transmitted to the headquarters of the
Army Group North or reported to von Leeb by his staff.

We are therefore unable to find from the evidence submitted
that the defendant von Leeb had knowledge of the murder of
civilians within his area by the Einsatzgruppen or acquiesced in
such activities.

Nor is it established from the evidence that the defendant
participated in the recruitment of slave labor for the Reich. The
document relied on in this connection is a report to the effect that
in a given period, a number of civilians were sent from the Army
Group North to the Reich for labor. Leeb was in command for
only a part of the period covered by the report. Furthermore, the
document does not establish the involuntary nature of the re-
cruitment.

5. Pillage of public and private property — The prosecution re-
lies upon two orders to sustain this charge. The first of these
orders is from the 12th Panzer Division on 11 November 1941,
directing an operation against certain villages “used by the parti-
sans as a base of operations,” with instructions to seize the cattle,
horses, and chickens and most of the food, but further directing
a small amount of food be left for the population at the direction
of the commander of the operations. We cannot say this order
was illegal.

Likewise an order of XXXIX Corps issued on 7 December 1941,
regarding a forced retreat, called for the destruction of food and
fodder that could not be taken along in the retreat. The destruc-
tion of these foodstuffs would tend to hamper the advancing enemy

562

and we cannot find it was not justified under the exigency of
the situation.

We do not find any criminality under this phase of the case.

6. Criminal conduct pertaining to the siege of Leningrad —
Leningrad was encircled and besieged. Its defenders and the
civilian population were in great straits and it was feared the
population would undertake to flee through the German lines.
Orders were issued to use artillery to “prevent any such attempt
at the greatest possible distance from our own lines by opening
fire as early as possible, so that the infantry, if possible, is spared
shooting on civilians.” We find this was known to and approved
by von Leeb. Was it an unlawful order?

“A belligerent commander may lawfully lay siege to a place
controlled by the enemy and endeavor by a process of isolation
to cause its surrender. The propriety of attempting to reduce
it by starvation is not questioned. Hence, the cutting off of
every source of sustenance from without is deemed legitimate.
It is said that if the commander of a besieged place expels the
noncombatants, in order to lessen the number of those who
consume his stock of provisions, it is lawful, though an extreme
measure, to drive them back so as to hasten the surrender.” *
We might wish the law were otherwise but we must administer
it as we find it. Consequently, we hold no criminality attached on
this charge.

For the reasons above stated we find this defendant guilty
under count three of the indictment for criminal responsibility in
connection with the transmittal and application of the Barbarossa
Jurisdiction Order. Under Control Council Law No. 10 it is
provided that superior orders do not constitute a defense but may
be considered in mitigation of an offense.

We believe that there is much to be said for the defendant von
Leeb by way of mitigation. He was not a friend or follower of
the Nazi Party or its ideology. He was a soldier and engaged
in a stupendous campaign with responsibility for hundreds of
thousands of soldiers, and a large indigenous population spread
over a vast area. It is not without significance that no criminal
order has been introduced in evidence which bears his signature
or the stamp of his approval.

We find on the evidence in the record, and for the reasons above
stated, the defendant is guilty under count three of the indictment,
and not guilty under count two thereof.

Presiding Judge Young: Judge Hale will continue the reading
of the judgment.

* iiyue, international Law (Little, Brown and Co., Boston, 1945) 2d Revised Edition,
vol. Ill, pp. 1802-1803.

563

HUSO SPERRLE

Judge Hale: He was born 7 February 1885, and entered mili-
tary service in 1903. After Hitler’s rise to power he was trans-
ferred to the air forces where he became a leading figure. In
1936-1937 he was Commanding General of the “Condor Legion”
sent by Hitler to participate in the Spanish Civil War which was
used as a testing ground for the OKL.

He attained the rank of field marshal in 1940. In 1941 he was
made commander of Air Fleet 3. In 1942 he lost his command
authority in the war against England. In 1943 and 1944 he
served at different periods for several weeks as “Deputy Com-
mander in Chief West” during temporary absences of Field
Marshal von Rundstedt. During these times he also had to con-
tinue his activities as commander in chief of Air Fleet 3, and
restricted his activities as “Deputy Commander in Chief West”
to the signing of letters or orders presented to him by Blumentritt,
chief of the general staff under von Rundstedt, and specialists
from that staff.

Aside from his alleged participation in crimes against peace,
heretofore disposed of in this opinion, he is charged with (1)
enforcing the “Sauckel action” while serving as deputy in Rund-
stedt’s absence; and (2) using Russian prisoners of war in air
force construction battalions in France.

The prosecution relies upon these two charges for a conviction.
The first is based upon an order of 6 June 1943, of which 380
copies were issued, in which he says:

“13. Recruiting of Workers in the Area of the Commander

in Chief West

“According to report from the military commander in Bel-
gium and Northern France it has again occurred, in spite of
orders to the contrary, that German agencies without being en-
titled hereto recruit workers within the area of the military
commander of Belgium and northern France for other areas
without using the mediation of the agencies of the military
commander of Belgium and northern France and of indigenous
agencies as prescribed. Through such procedure these workers
for the most part were lost to recruitment for Germany through-
the ‘Sauckel Action’. I shall examine to what extent military
authorities are involved in this prohibited recruiting.”

On 1 March 1944, at a meeting between Milch and Sauckel,
the latter said : “* * * Field Marshal Rundstedt and Field Marshal
Sperrle gave me the utmost support in these matters”, i.e., the

564

support of the Wehrmacht in compulsory recruitment of French
labor.

Blumentritt testified in substance that during this period
Sperrle had little to do with such matters and that this order
was merely to clarify the jurisdiction of the different agencies.
The record indicates that Sperrle was on principle opposed to
the Sauckel drive and sought to make it ineffective. Consequently
there is generated in our minds a reasonable doubt as to his
guilt on this charge.

The second charge is founded upon entries in War Diary No. 1
of Luftwaffe Construction Brigade 12, Air Fleet 3, under Sperrle,
and consequent orders of subordinate units showing it was con-
templated that the Russian prisoners of war be used as construc-
tion units. But there is no evidence they were so used, but to the
contrary, the record establishes none were ever so used.

We find the defendant not guilty under counts two and three
of the indictment and he will be discharged by the Marshal when
the Tribunal adjourns.

GEORG KARL FRIEDRICH-WILHELM VON KUECHLER

Field Marshal von Kuechler was born in 1881, entered service
in 1900, and rose by various promotions to field marshal in Jan-
uary 1942, succeeding, von Leeb as Commander of Army Group
North. He continued in this command until January 1944, when
he was placed in the Fuehrer Reserve.

He participated in the entire Polish campaign as Commander in
Chief of the 3d Army. From 30 September 1939 until 5 November
1939 he was commander of the border section of East Prussia.
On 5 November 1939 he became Commander in Chief of the 18th
Army in the West. The 18th Army invaded Holland in 1940,
marched through Belgium, advanced to Dunkirk, captured Paris,
and he remained commander in chief of it until the troops reached
the Spanish border.

At the beginning of July 1940, he was sent to the East, and
then became, so to speak, the Commander in Chief of the eastern
front, but that was only a short time, until the arrival of Field
Marshal List. But he retained the 18th Army. At first only the
staff of the 18th Army w r as transferred to the East, while the
troops remained in the West. But little by little, most of the
troops of the 18th Army he had commanded in the West returned
to the East, so that in the spring of 1941, the 18th Army was
completely assembled in the East.

Then came the Russian campaign in 1941. At that time he was
Commander of the 1 8th Army on the northern flank, at first in the

565

[

Baltic, then as far as Leningrad. He retained this command
until January 1942, when he was made a field marshal and took
over the command of Army Group North, as successor to Field
Marshal von Leeb, a position which he held until he was relieved
of it in 1944.

The record indicates that Field Marshal von Leeb appraised
him as “personally without fear, cold-blooded, respected, exem-
plary soldier suitable as commander in chief of an army group.”

The record shows him to have been cold-blooded and ruthless.

He was charged under all four counts of the indictment. Num-
bers one and four have been eliminated by the action of this
Tribunal. The remaining charges, under counts two and three,
may be broken down into the following headings : ( 1 ) The Com-
missar Order; (2) the Commando Order; (3) neglect of prisoners
of war and their use in prohibited labor; (4) illegal execution
of Red Army soldiers and murder and ill-treatment of prisoners li
of war; (5) deportation and enslavement of the civilian popu-
lation; (6) plunder of public and private property; (7) murder,
ill-treatment, and persecution of civilian population; and (8)
the Barbarossa Jurisdiction Order.

We shall discuss these charges in order. ?

1. The Commissar Order — As commander of the 18th Army, he
received this order directly from the OKH, together with the von
Brauchitsch Disciplinary Order. He passed the Commissar Order J
on to subordinate commanders. He testified that he couldn’t p
embezzle it, push it aside, or ignore it. He had attended the
Hitler conference in Berlin in March and knew of the impending J
war of ideology and extermination. He was opposed to the order
because it was repugnant to him and not consistent with his
views of warfare, and “between the devil and the deep blue sea I I l
had to find a way through. On the one hand I did not want to be j

in danger of being regarded as a disobedient commander, because p

it was quite obvious that it would become known and that it 4

would be said the commander in chief did not carry out an order.

On the other hand, however, I did want to express my own opinion
in regard to this order that it wasn’t to be followed. That was
my position.” He further testified that he protested to von Leeb. p

However, he gave an affidavit for use in the IMT on behalf of
the High Command in which he stated: “I never held this order
in my hands; whether it ever reached my agency, I do not know; , "

whether and in what manner troop commanders were informed (J

of it, I cannot state * * *. My then commander in chief, Field is

Marshal von Leeb, I met several times on the battle field. We j

never discussed an order concerning special measures against
political commissars.” These two statements are utterly irrec- g

566

oncilable. His explanation is that when he made the affidavit
he did not know this as the “Commissar Order”, and that the
documents had refreshed his memory. We think it clear that he
knew exactly what he had reference to when he made the affi-
davit. This of course affects his credibility.

But even though we were disposed to accept his statement of
his opposition to the order, the cold, hard, inescapable fact re-
mains that he distributed it, and that it was enforced by units
subordinate to him in the 18th Army. Many reports were made
by these subordinate units, which should have been known to
him, that commissars were being executed by them. He says
he did not know of it. It was his business to know, and we
cannot believe that the members of his staff would not have called
these reports to his attention had he announced his opposition to
the order. It was a criminal order upon its face and the fact that
he was caught “between the devil and the deep blue sea,” or that
it would have endangered him as a disobedient commander if he
had not carried out the order, is not a defense to, but may go in
mitigation of, the crime charged.

2. The Commando Order — This order was transmitted by the
OKH directly to the armies as well as to the Army Group North
of which the defendant was then in command. The evidence in
this case does not show it was put by the defendant into the
channels of command for subordinate units. The order was not
particularly applicable to the eastern area and there is no evi-
dence to show that it was carried out within his command. Under
these circumstances we fail to find the evidence sustains a crim-
inal act by the defendant in connection with this order.

3. Neglect of prisoners of war and their use in prohibited
labor — The defendant has been charged with the use of pris-
oners of war in dangerous occupations, including the use of
prisoners for the removal of mines. The evidence in this case
shows orders providing for such use issued by units subordinate to
him. It also shows that an order of the OKH was distributed by
the L Corps of the 18th Army to the 269th Division, which
directed that “mines other than in the combat or dangerous area
are to be removed by Russian prisoners in order to spare German
blood.” The defendant in his testimony admits that this order
must have passed through the headquarters of the 18th Army.
This order was dated 3 November 1941. An order of the XXX
Corps providing for the use of prisoners of war in clearing mines
is dated 1 September 1942. An order of the 281st Security Divi-
sion in the rear area of the Army Group North, distributed on
16 July 1943, provided for the use of civilians for the removal of
mines. Von Kuechler denies that XXX Corps was subordinate to

567

him at this time but the Order of Battle shows that it was sub-
ordinate to him. Whatever the fact, the other documents spread
over a wide period of time and from the testimony in this case,
particularly the defendant’s, we conclude that the defendant had
knowledge of and approved the practice of using both prisoners
of war and civilians for improper and dangerous work.

A. Illegal execution of Red Army soldiers and murder and ill--
treatment of prisoners of war — As to the responsibility of the
defendant von Kuechler for the criminal execution of Red army
soldiers and prisoners of war, a number of documents have been
called to our attention. These comprise generally orders of the
OKH under which these illegal executions were carried out. An
examination of these orders, however, fails to adequately establish
the defendant’s transmittal of them. However, it is not considered
that this fact relieves him from criminal responsibility in con-
nection with these acts.

Subsequent to the time that the defendant assumed command
of the Army Group North, the record discloses that numerous
reports showing such illegal executions were made to his head-
quarters, covering a wide period of time. These reports must be
presumed in substance to have been brought to his attention. In
fact, his own testimony indicates he was aware of these reports.
There is no evidence tending to show any corrective action on his
part. It appears from the evidence therefore that he not only
tolerated but approved the execution of these orders.

He must, therefore, be held criminally responsible for the acts
committed by his subordinates in their illegal execution of Red
Army soldiers and escaped prisoners of war.

Concerning the criminal neglect of prisoners of war, the de-
fendant is charged in two capacities — the first as Commander in
Chief of the 18th Army ; the second as Commander in Chief of the
Army Group North after he assumed command in January 1942.

As Commander of the 18th Army, he was charged directly with
responsibility for prisoners of war. This is shown from various
sources of evidence in this case and particularly from the testi-
mony of Haider wherein he stated that the Commander in Chief
of the AOK was responsible for prisoners of war in the occupa-
tional zone of AOK and that the OQ [O.Qu.] of the AOK was
in charge of these matters. In fact, von Kuechler himself stated
that he visited every prisoner of war camp in his area.

That prisoners of war died from neglect and ill-treatment with-
in his area is shown by various documents. Among these is
the war diary of the AOK 18 Ic wherein it is stated as of 4 No-
vember 1941, that “ten prisoners were dying every night from
exhaustion.” On 9 November the OQ [O.Qu.] announced at a

568

conference with the Chief of Staff of the 18th Army that “at pres-
ent 100 men are dying daily.” At another conference held at the
headquarters of the AOK 18 on 28 November 1941, it was dis-
closed that all the inmates of the Camp East were expected to
die within six months at the latest because the prisoners were
treated badly when at work and could not survive on the rations,
and it was stated that “in the Camp West where the prisoners
were not put to work, the number of dead is insignificant and
has other reasons.” This exhibit shows that in the camp at
Pleskau [Pskov], out of 20,000 prisoners, about one thousand
perished immediately from exhaustion. The entry as of 28
November 1941 states that the “guards believe that they must
be tough”, and also states that “as the number of prisoners
available is very restricted, the weak ones must also be put to
work.”

Under these circumstances and upon the entire evidence in this
case, the Tribunal finds that as Commander in Chief of the 18th
Army, the defendant von Kuechler was guilty of criminal neglect
of prisoners of war within his jurisdiction.

Concerning the defendant’s responsibility as Commander in
Chief of the Army Group North, the evidence shows that on 22
June 1942, certain regulations pertaining to prisoners of war were
distributed by the commander of the rear area of the Army Group
North. This order contained a copy of regulations for the com-
mander of prisoners of war in the operational area. Under head-
ing (1) of the regulations, it is stated: “The commander of pris-
oners of war is subordinated to the High Command of the Army
Group.” Further regulations as to his duties are outlined.

Further, it is shown by the evidence in this case that after the
reorganization of the army group staffs in 1942, there were two
agencies on the staff of an army group responsible for prisoner
of war affairs. One of these was Department Q2 [Qu.2] and the
other was the Commander of Prisoner of War Affairs. It therefore
becomes apparent that after 22 June 1942, he became directly
responsible for prisoners of war within the area of his army
group. However, the evidence in this case does not show neglect
of prisoners of war in the army group area subsequent to his
assumption of command.

We are therefore unable to find von Kuechler guilty of neglect
of prisoners of war as the Commander in Chief of Army Group
North.

5. Deportation and enslavement of the civilian population —
The responsibility of the defendant von Kuechler for the economic
agencies of the Third Reich operating in his command, pertains
both to the question of slave labor for the Reich and economic

569

spoliation. One of these economic agencies was the Economic
Staff East under Goering. Its activities and responsibilities are
set forth in the so-called Green Portfolio. On page six of the
document, paragraph I, it is provided:

“The subordinate economic agencies of the Economic Staff
East are, as far as they are active in the zone of operation as-
signed to the command agencies of the army and militarily
under their jurisdiction * *

Subsection A provides for the economic organization for the
army group rear area. Subsection B provides for the economic
organization within the army areas.

An order of the OKW to the OKH, OKL, and OKM of 19 May
1941, transmitted instructions pertaining to this matter. Pur-
suant to these orders, economic officers were attached to army
headquarters, to the army group rear areas, and to subordinate
units. At a later time, economic inspectors were attached to the
army group and control of economic matters was taken over by
the army group. This is shown by [NOKW-2460, Pros.] Exhibit
436, the heading of which is as follows :

“Commander in Chief, Army Area North
Enclosures to War Diary Qu.

Monthly reports
Economy Inspectorate North
from 1 March 1942 to 31 August 1942
Economy Inspectorate North
Group Leader M I/Ia
Registry No. 637/42 secret
461/42
14/6/Le.

Back to Chief of Staff, to be submitted again.

Pleskau [Pskov], 6 June 1942.”

On 23 April 1942, an order was issued, signed by von Kuechler,
pertinent parts of which are as follows :

“1. The economy offices are not civilian institutions but offices
of the OKW.

The activity of the economy offices is guided by the directives
concerning ‘Economy in the Occupied Eastern Territories’
(Green File).

“2. The economy works for the troops. Disregard of eco-
nomic reconstruction or interference will harm the troops them-
selves.

“3. Within the educational program, ample opportunity is

570

given to the economy offices to enlighten the troops on the pur-
pose, structure, and success of their activities.

“4. Promise for maximum efficiency of land and inhabitants
in the occupied territories is the uniform direction and orienta-
tion of the German offices.

It is of the utmost importance to me that the commanders in
chief of the occupied territories and the chiefs of the economic
missions cooperate very closely and faithfully.

“5. The economy offices are solely responsible for the execu-
tion of the economic orders of the Economy FSt East.

“6. Economic coercive measures of the economy offices may
be imposed only if they are countersigned by the bearer of the
executive power, i.e., the local commander.

“7. Coercive measures in the interest of the troops, such as
conscription of laborers, means of transportation, and delivery
of products, can be carried out by the military authorities only
in cooperation with the local economy offices. If agreement
cannot be reached, decision is to be requested from the superior
military and economy authorities.”

The relationship between the army and economic authorities is
further established by an order of the commander of the rear area
of Army Group North, issued on 3 June 1943 to security divisions
under his command, which reads as follows [NOKW-1501, Pros .
Ex. 48] :

“To delineate the authority of the military command author-
ities and the economy offices, the High Command Army Group
North, has informed Economy Intendantur North as follows:

*******

“a. Legislative

“The issuing of law decrees is reserved exclusively to the
bearers of the executive power. Decrees in the economic sphere
will be issued by agreement with the economy offices, with the
reservation only of compulsory military reasons. The economy
offices are responsible for the departmental content of legal
decrees, issued at the suggestion of or in collaboration with
economy offices.

“The carrying out of law decrees issued by military command
authorities in the economic sphere is a duty of the economy
offices.

*******

893964—51 38

571

“c. Administrative

“The occupied territories will be administered by the bearers
of the executive power unless special regulations are issued for
individual departmental spheres. The special administrations
include the economic administration of the occupational zone.
This is a task of the Economy Organization East. Economic
directives to military command authorities, to the troops, to
the indigenous administration, or to the civilian population
which do not require legislative decrees according to a are to be
submitted (vertreten) to the military command authorities by
the economy office. Their implementation is ordered by the
military command authorities through military channels of
command.

“The other departmental-economic directives will be carried
out by the economy offices through their departmental channels.
The military command authorities are to be kept informed cur-
rently by them of all directives of particular importance re-
ceived or issued.

“There is no immediate correspondence between the economy
offices and the indigenous administration unless the bearers of
the executive power issued different instructions in individual
cases.

“You are requested to inform the subordinate offices of the
economy administration accordingly.

“The security divisions are receiving this information with
the request to inform the subordinate offices and units down to
Ortskommandantur and battalion level correspondingly.”

The above quoted directives clearly establish the relationship
between the defendant as Commander of Army Group North and
the economic authorities within his area.

On 8 June 1942 the 285th Security Division reported to the Com-
mander of the Rear Area of the Army Group North as follows:

“The morale of the population has been lowered a good deal
by the labor allocation to Germany since the recruiting had to
be carried on in most cases by imposing a forced quota on the
various communities. ,,

A situation report dated 15 March 1942 to the Commander of
the Rear Area of the Army Group North, stated as follows :

“Of particular interest is the seizure of refugees to cover
the needs of labor for the Reich and for the fighting troops as
well as for the war plants in the Army Rear Area and Estonia.

“During the period 28 January-19 February all in all 16
transport trains containing 9,786 persons went to the transit

572

camp in East Prussia. From the area around Sebesh and Idriza
on 15 February 1942, altogether 3 transport trains with 1,357
persons were sent off. At the present time an additional 1,500
persons, who are gathered in Krasnogvardeisk, are ready for
transport.”

A report from Korueck 584 to AOK 16, dated 27 June 1943,
states as follows:

“The enemy propaganda exploits the situation and is work-
ing hard at it. The population is told over and over again that
they will be employed in the front line by the Germans and that
they are bound to starve due to the small rations. In conse-
quence only a few people appear on the date of their draft and
the draftees must be brought in by use of soldiers. The then
unavoidable harshness contributes greatly to the deterioration
of the morale.”

On 14 February 1943, von Kuechler distributed over his signa-
ture a Fuehrer order relative to evacuations which provided —

“3. In case of evacuation, all men between the age of 16 and
65 are to be taken along by the troops. Thus, the troops will
always have manpower for building of entrenchments and pris-
oners of war will be released for new employment (handing
over to Luftwaffe in exchange for men they have released).
Then the enemy will be unable, as he is doing now on a large
scale, to draft the entire male population as combatants.

“4. In case of planned evacuations of considerable extent the
mass of the civilian population is to be taken along, whenever
possible, to be used later as manpower. The villages are then
to be destroyed.”

On 19 September 1943, the High Command of the Army Group
North/OQu. transmitted an order to the Corps Headquarters
Tiemann which provided in pertinent part as follows :

“Ad Section I

“The 'procurement of the manpower and its allocation to the
agencies requiring same will be affected by Army Group North/
OQu in cooperation with Economy Intendant North * * *.”

“Ad Section II, 2c

“The labor offices have orders to retain the male individuals
of the age classes 1925-26 and 1927 upon their arrival in the
reception camps for transport to the Reich * * *.”

This order also inclosed a special ordinance for the procurment of

573

manpower for the execution of Fuehrer Order 10, signed by Wag-
ner, and a directive of 30 September 1943, from the High Com-
mand of the Army Group North to the Corps Headquarters Tie-
mann, pertinent parts of which reads as follows from Article I:

“Any possible military aid is to be provided for the economic
agencies charged with the procurement of the civilian man-
power.”

Section II contains other provisions as to labor to be kept avail-
able for the construction of a Panther line exclusively. Subsection
5 of Section II provides —

“All troops and authorities in the army group area and army
area must examine by means of the economy agencies, how far
the allocation of female labor forces is necessary. In this re-
spect the strictest standards must be applied. All labor forces
which are not absolutely required, are to be released and are
available for allocation to the construction of the Panther line.”
Section IV of the order provides :

“The Higher Engineer Commander No. 3 is responsible for
the housing of the laborers. The Commander of Army Group
North Rear Area has in this respect to support him extensively.
In the billeting space the troops and military installations must
move together more closely, the population must be housed in
the very narrowest space, and the part of the population unfit
for labor allocation, must be ruthlessly deported. The prohibi-
tion of troops and population being billeted together may in
special cases be relaxed on the responsibility of the com-
manders.”

On 21 September 1943, the Commanding General of the Security
Troops and Commander of the Rear Area of the Army Group North
issued an order, pertinent parts of which are quoted as follows :

“Subject : Evacuation of the civilian population from the area

between the present advanced front line and the
Panther position.

“Reference: Commander in Chief Army Group North, la No.

101/43, top secret military, dated 17 September
1943 (not distributed) .

“I. Task

“The Commander in Chief of Army Group North has ordered,
by reference order, the evacuation of the civilian population
from the area between the present advanced front line and the
Panther position. This evacuation is to be carried out exten-
sively and without delay by all means and possibilities available.

574

“II. Supervision

“Pursuant to special order the responsibility and supervision
of the evacuation of the population rests with the commander in
the Army Group North. For this purpose he is entitled to issue
instructions to the armies.

Ill . Principles to be applied in the evacuation
. “1. No usable manpower must be left to the enemy.

“2. The evacuation will take place mainly in marching con-
voys of about 1,000 persons each, covering an average of 12-15
km. per day * * *.

“4. The families will set out in village communities under the
direction of the Starost and be escorted by indigenous police.

“5. During the march, the families are to feed themselves.
Only bread is to be distributed on the way * * *.

“12. Before the setting out of the convoys, the inhabitants
will be screened in the starting places, and/or transfer camps,
for later labor assignment. See Number IV, A 3. For this
purpose Gauleiter Sauckel will send a number of representa-
tives to Economy Intendantur North. In order to avoid unde-
sirable effects upon the readiness of the population to be evacu-
ated the able-bodied are to be turned over to the representatives
of Gauleiter Sauckel together with their families. As far as
they cannot take charge of complete families, the separation of
the able-bodied is to take place at the earliest in the receiving
camps, but if possible only in the final areas.

“The labor assignment of those evacuated will be partly for
operation ‘Panther’, partly in the occupied territory, partly in
the Reich. It is estimated that 50 percent of each convoy are
able-bodied. Children over 10 are considered as laborers.”

On 7 October 1943, the AOK 18 OQu Ic Counterintelligence
Officer transmitted to the High Command of the Army Group
North Ic Counterintelligence Officer, a communication regarding
evacuation by foot march which refers to this contemplated evacu-
ation, pertinent parts of which read as follows [NOKW-3379,
Pros. Reb. Ex. :

“Numerous remarks from the population have been heard
in the sense of ‘We prefer to be clubbed to death right here than
to being evacuated.’ Even the population which is basically
pro-German suspects rightly that the evacuation by foot march
will mean inconceivable misery and will cost innumerable peo-
ple their health or their lives * * *.

“3. One must keep clearly in mind that these treks will be
trains of misery of the worst kind in spite of the fact that within
the army area, on account of the comparatively dense deploy-

575

ment of German troops, it was possible to prepare to some
extent the taking care and sheltering of the treks. The horses
and vehicles of the population on hand will not be sufficient by
far to take care of the people who are unable to march or become
unable to march, and to take along the most necessary amounts
of foodstuffs, clothing, and household implements. Already
up to the collecting camps Luga and Jamburg the treks will
have to cover up to 150 km, therefore they will be on their
way up to 2 weeks. Considering the state of the clothing, espe-
cially the shoes, of the population and the expected weather,
the participants of these marches will soon be in an indescrib-
able state especially the women and children. As far as the
availability of any horses and vehicles of their own is concerned,
reference is made to the enclosed report of the Ortskommandant
of Lampoo, and it is expressly pointed out that the community
of Lampoo is one of the richest and so far best maintained com-
munities in the whole army area.”

Notwithstanding this communication to his headquarters, on
30 Noyember 1943, the defendant signed the following order to the
16th Army:

“1. The population of the occupied Russian zone east of the
Panther has to be speedily evacuated, unless they are labor
forces required by the Wehrmacht. The able-bodied population
in particular has to be seized, eventually even without considera-
tion as to preserving the unity of families, and with horses and
cattle to be deported to the territories west of the Panther. As
to undesirable elements, suspected of assisting the bands, the
organization of special camps in the East is to be waited for * * *.

****** *

“7. The execution of above measures and their continuous
supervision is the duty of all commanders and offices. They 1
have to be aware of the fact that an omission represents a grave
offense, injures the conduct of the war, and costs the blood of
German men. ,,

Many documents in evidence aside from these which we have
specifically mentioned outlined the ruthless policy of the Third
Reich for labor recruitment and many documents in the record
show the hardships resulting therefrom. The documents which
we have above mentioned, several of which bear the signature of
the defendant von Kuechler, establish beyond question the ruth-
less manner in which he contributed to this program and also
the ruthless manner in which he evacuated hundreds of thousands
of helpless people, contrary to the dictates of humanity and the

576

1

laws of war. He is also guilty of the use of the civilian popula-
tion for work directly connected with the waging of war contrary
to the rules of international law. The various defenses he has
offered to these acts provide no justifiable excuse and are most
unconvincing.

6. Plunder of public and private property — The evidence does
not convince us beyond a reasonable doubt that the defendant is
guilty of the charge of the plunder of public or private property.

7. Murder, ill-treatment, and persecution of civilian population;

and

8. Enforcement of the Barbarossa Jurisdiction Order — We
shall unite these matters in this discussion.

The criminal purposes of the Barbarossa Jurisdiction Order
have been discussed by us. This order was received and dissemi-
nated by the defendant without any action by him to prevent its
criminal application, and carried out illegally by units under the
defendant’s command.

Units subordinate to him summarily executed civilians because
they were Communists, gypsies, had an anti-German attitude, “on
suspicion” of aiding partisans, for anti-German propaganda, for
listening to Radio Moscow and spreading rumors of atrocities, for
refusing to work, and so on.

At a meeting, held in July 1942, of Hitler, Keitel, Goering, and
others, Hitler stated, “The Russians have now ordered partisan
warfare behind our front. This partisan warfare has some advan-
tage to us ; it enables us to eradicate whoever opposes us.”

The Barbarossa Jurisdiction Order was an implement for the
execution of this purpose. Summary executions were held after
an on the spot investigation by an officer, even down to a second
lieutenant. Headquarters I AK [Army Corps] in Army Group
North issued on 5 March 1942 an order reciting that “strong
suspicion will be sufficient in numerous cases under the special
conditions of this war” to authorize the execution of the suspect.
Brutality was substituted for judicial process, suspicion took the
place of proof.

In Haider’s diary, there is an entry of 26 September 1941 —
“Mental institutions in Army Group North. Russians look

at the feeble-minded as sacred beings. Killing them is neces-
sary nevertheless.”

There was in the area of the 18th Army under the defendant
an asylum containing some 230 insane and diseased women. After
some discussion to the effect that these unfortunates were “no
longer objects with lives worth living according to German con-
ception,” it was proposed that they be executed. An entry in the

577

diary of XXVIII AK [Army Corps], dated 25-26 December 1941,
shows “The commander in chief assented” to this solution, and
directed its enforcement by the SD. Von Kuechler’s denial to the
contrary, we find this action was taken with his knowledge, ap-
proval, and consent. We cannot find that this ghastly entry was
made by some young and over-worked officer, as contended by the
defendant. It is evidence of the deliberate enforcement of a state
policy known to the defendant and the world as well.

As to the criminal responsibility of von Kuechler in connection
with the extermination activities of Einsatzgruppe A, other than
as above set forth, within the area of his command, we do not
find the evidence adequate to establish his guilt for substantially
the same reasons as these given in the judgment concerning
von Leeb.

The prevailing pattern of persecution of the Jews, however, is
to be found in the units subordinate to the defendant, and we find
was known to and approved by him. As early as July 1940, he
issued an order stating — 1

“2. I am also stressing the necessity of ensuring that every (
soldier of the army, particularly every officer, refrain from
criticizing the ethnical struggle being carried out in the Gov- ;
ernment General, for instance, the treatment of the Polish mi-
norities, of the Jews, and of church matters. The final ethnical
solution of the ethnical struggle which has been raging on the
eastern border for centuries calls for one-time harsh measures.

“Certain units and departments of the Party and the State
have been charged with the carrying out of this ethnical strug-
gle in the East.

“The soldiers must, therefore, keep aloof from these concerns i
of other units and departments. This implies that they must
not interfere with these concerns by criticism either. {

“It is particularly urgent to initiate immediately the instruc-
tions concerning these problems of those soldiers who have been
recently transferred from the West to the East; otherwise, they
might become acquainted with rumors and false information j
concerning the meaning and the purpose of that struggle.”

This clearly showed his attitude towards the Jewish question.

On 10 October 1941, the 18th Army distributed the infamous
Reichenau Order. Because of its inhumanity, we set it out in full
[NOKW-3^11, Pros . Rebuttal Ex. H] :

1 1

“Subject: Conduct of troops in eastern territories «

“Regarding the conduct of troops towards the Bolshevistic
system, vague ideas are still prevalent in many cases. The most
essential aim of war against the Jewish-Bolshevistic system is a

578

complete destruction of their means of power and the elimina-
tion of Asiatic influence from the European culture. In this
connection the troops are facing tasks which exceed the one-sided
routine of soldiering. The soldier in the eastern territories is
not merely a fighter according to the rules of the art of war
but also a bearer of ruthless national ideology and the avenger
of bestialities which have been inflicted upon Germany and

I racially related nations.

“Therefore the soldier must have full understanding for the
necessity of a severe but just revenge on subhuman Jewry. The
army has to aim at another purpose, i.e., the annihilation of

I revolts, in the hinterland, which, as experience proves, has
always been caused by Jews.

“The combating of the enemy behind the front line is still
not being taken seriously enough. Treacherous, cruel partisans
and unnatural women are still being made prisoners of war;
and guerrilla fighters dressed partly in uniforms or plain clothes
and vagabonds are still being treated as proper soldiers, and
sent to prisoner-of-war camps. In fact, captured Russian offi-
cers talk even mockingly about Soviet agents moving openly
about the roads and very often eating at German field kitchens.
Such an attitude of the troops can only be explained by com-
plete thoughtlessness, so it is now high time for the commanders
to clarify the meaning of the pressing struggle.

“The feeding of the natives and of prisoners of war who are
not working for the armed forces from army kitchens is an
equally misunderstood humanitarian act as is the giving of
cigarettes and bread. Things which the people at home can
spare under great sacrifices and things which are being brought
by the Command to the front under great difficulties, should
not be given to the enemy by the soldiers not even if they originate
from booty. It is an important part of our supply.

“When retreating the Soviets have often set buildings on fire.
The troops should be interested in extinguishing fires only as
far as it is necessary to secure sufficient numbers of billets.
Otherwise the disappearance of symbols of the former Bolshe-
vistic rule even in the form of buildings is part of the struggle
of destruction. Neither historic nor artistic considerations are
of any importance in the eastern territories. The command
issues the necessary directives, for the securing of raw materials
and plants, essential for war economy. The complete disarming
of the civilian population in the rear of the fighting troops is
imperative considering the long and vulnerable lines of commu-
nications. Where possible, captured weapons and ammunition
should be stored and guarded. Should this be impossible be-

579

cause of the situation of the battle, the weapons and ammuni-
tion will be rendered useless. If isolated partisans are found
using firearms in the rear of the army, drastic measures are
to be taken. These measures will be extended to that part of
the male population who were in a position to hinder or report
the attacks. The indifference of numerous apparently anti-Soviet
elements which originates from a 'wait and see' attitude must
give way to a clear decision for active collaboration. If not, no
one can complain about being judged and treated as a member
of the Soviet system.

“The fear of the German counter measures must be stronger
than the threats of the wandering Bolshevistic remnants. Being
far from all political considerations of the future the soldier
has to fulfill two tasks —

“1. Complete annihilation of the false Bolshevistic doctrine of
the Soviet State and its armed forces.

“2. The pitiless extermination of foreign treachery and
cruelty and thus the protection of the lives of military personnel in
Russia.

“This is the only way to fulfill our historic task to liberate the
German people once and forever from the Asiatic- Jewish
danger.”

Is it any wonder that persecutions followed when heads of
armies were issuing such inflammatory and inciting orders?

Various other orders of like import were issued by the 18th
Army and subordinate units. Orders were issued requiring Jews
to wear distinguishing brassards, and placing them in ghettos.
We find this was known to and approved by the defendant.

For the reasons above stated, we find the defendant guilty under
counts two and three of the indictment.

HERMANN HOTH

Hermann Hoth was born 12 April 1885 at Neuruppin. He
served in World War I in various positions and after the war
remained with the Reichswehr. In 1988, as a major general, he
commanded the 18th Division which entered the Sudetenland.
Shortly thereafter, in November 1938, he was promoted to lieu-
tenant general and was appointed commander of the newly acti-
vated XV Motorized Corps, consisting of three motorized divisions.
As commander of this corps he marched into Poland in September

1939. Following the Polish campaign he led a Panzer group in
the attack on France and captured Brest and Bordeaux. In July

1940, he was promoted to full general and the XV Panzer Corps
was transformed into Panzer Group 3. For the war against Rus-

580

,

sia, Panzer Group 3 was assigned to Army Group Center, being
first subordinate to AOK 9 and later to AOK 4. Hoth remained
as Commander of Panzer Group 3 until 9 October 1941, and on
10 October 1941, he was appointed Commander in Chief of the
17th Army attached to Army Group South. On 15 May 1942, he
was appointed Commander in Chief of the 4th Panzer Army, in
which position he remained until 12 October 1943, when he was
transferred to the Fuehrer reserve.

Hoth is charged on all four Counts of the Indictment. We have
disposed elsewhere in this opinion of counts one and four.

COUNT TWO OF THE INDICTMENT

This count charges Hoth with war crimes and crimes against
humanity involving crimes against enemy belligerents and pris-
oners of war. 1 v »!'S

THE COMMISSAR ORDER

At the conference at the Reich Chancellory on 31 March 1941,
which Hoth attended, Hitler made the announcement regarding
the nature of the war against Russia and the extermination of
commissars. Hoth thus had advance notice of Hitler’s criminal
intentions.

Prior to the beginning of the Russian campaign, the Commissar
Order was sent to Hoth’s headquarters. With respect to this order
he testified as follows:

“Much as I would like to, I can no longer recall the occasion
and the place, that is, when and where I passed on the order to
the commanding generals of the two Panzer corps. I have
thought much about it, but I no longer know. The fact that it
was passed on by me is beyond any doubt.”

He testified further that he expected the commissars to violate
international law but did not wish them to be shot merely because
they were commissars. There has been no contention during this
trial that the commissars, sometimes referred to as Politruks,
who were attached to the army, were not soldiers and that they did
not comply with all the requirements of the Hague Convention and
international law to constitute them lawful belligerents. In its
essence, the Commissar Order was a clear and definite directive to
shoot captured enemy soldiers with a known lawful prisoner of
war status and being such it constituted an order to commit
murder. It was a criminal order on its face. It was a criminal
act under international law for Hoth to pass it down to his sub-
ordinate units. When these units committed the crimes enjoined
by it, the superior commander must bear a criminal responsibility

581

for such acts because he ordered their commission.

As a defense Hoth says that he received the order from his
superior Brauchitsch and that he simply passed it down without
emphasizing it or attempting to mitigate it. He states also that
he did not think Hitler would ask his commanders to do anything
wrong and further that Hitler was the head of the state and that
when he received a directive from him it superseded section 47
of the German Military Penal Code which provides that an officer
need not carry out an order that is clearly criminal on its face
and commits a criminal act if he does so. He further states, in
effect, that he was certain that his subordinates were sufficiently
radar-minded to pick up the rejection impulses that radiated from
his well known high character and that he believed that they
would have the courage that he lacked to disobey the order. As
we have set forth in another section of the opinion, superior orders
are not a defense but may be considered under some circumstances
in mitigation of the punishment, but the mere unexpressed hope
that a criminal order given to a subordinate will not be carried
out is neither a defense nor a ground for the mitigation of punish-
ment. That the character impulses were too weak or the minds of
the subordinates were too insensitive to pick them up is shown by
the documents.

On 22 June 1941, the 20th Infantry Division reported one com-
missar killed, this being on the first day of the Russian campaign.
The next day another commissar was reported killed by this same
division. It would be most unusual to find such in the reports if
the commissars were killed in battle unless the reports referred
to some preexisting order. With the Commissar Order in effect
it is perfectly natural and logical to find such reports. Nothing
in the Commissar Order required such a report of commissar battle
casualties.

On 30 June 1941, a commissar with the rank of colonel was
captured by the 12th Panzer Division which was subordinate to
Hoth and shot as ordered.

On 6 July 1941, the 20th Panzer Division, subordinate to Hoth
in its activity, report shows the interrogation and shooting of
another commissar. On 18 July 1941, upon inquiry from the
XXXIX Army Corps, subordinate to Hoth, it was reported that
the division, since 5 July 1941, had shot approximately twenty
commissars. On 26 July 1941, one political commissar was shot.

On 17 July 1941, Panzer Group 3 reported two commissars shot
and in the same report for 18 July 1941, the following appears:

“A report on the number of liquidated commissars is not yet
at hand. Up to now the number of captured and liquidated
commissars seems to be very small (approximately 50).”

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Panzer Group.

An intelligence report of Panzer Group 3 covering the period
from January until July 1941 contains the following statement:

“During the first weeks of the fighting only a small number
of political commissars and officers were captured. Up to the
beginning of August in the whole area of the group about 170
political commissars (within the armed forces) were captured
and reported as removed by the army headquarters. This opera-
tion was no problem for the troops.”

This activity report was seen by Hoth. Other portions of this
report show that Hoth saw and signed it on 25 September 1941.
Another paragraph contained in the report is significant as indi-
cating what happened to the 170 commissars who “were captured
and reported as removed by the army headquarters”:

“The special treatment of the political commissars by the
armed forces resulted in its becoming soon known on the Rus-
sian side and in the strengthening of the will to resistance. To
prevent its being known, the special treatment should have been
performed only in camps located far back in the rear. Most of
the captured Red Army soldiers and officers are aware of such
a special treatment, of which they said they learned from rou-
tine orders and from political commissars who had escaped.”

The above paragraph is significant as indicating the actual
carrying out of the Commissar Order. There would have been no
need to say that the special treatment should have been carried
out far to the rear to prevent its becoming known if there had
not, in fact, been special treatment to become known to the
Russians.

On 8 August 1941, in a directive from the chief of the general
staff of Hoth’s Panzer Group 3 the following appears :

“In accordance with the new Soviet regulations, all regiments
and divisions, as well as higher staffs, have now war commissars
(formerly political commissars), while companies, batteries, and
troops have political leaders (Politruk), who also fall under the
classification of war commissars. Individual inquiries on the
part of the troops make it necessary to point out again that
there will be no change in the treatment of these persons.”

This document indicates that Hoth’s psychological rejection of
the Commissar Order had not gone as far down as his chief of
■staff. From the information contained in this directive from the
chief of staff it would appear extremely doubtful that Hoth’s

583

rejection of the order would be suspected at subordinate levels
since the information is stated to be in response to inquiries by
the troops.

On 25 November 1941, Hoth then being the Commander in Chief
of the 17th Army, through his chief of staff, ordered the estab-
lishment of a concentration camp. Directions for the treatment
of the inmates of the camp are attached to the order providing
for the establishment of the camp. In these directions appears
the following: “Commissars will be subject to special treatment”.

The Commissar Order was passed down by Hoth and with his
knowledge and approval was ruthlessly carried out by units sub-
ordinate to him.

TREATMENT OF PRISONERS OF WAR IN HOTH’S AREA

As regards the general condition of prisoners of war in Hoth’s
17th Army Area the report of the Oberquartiermeister of his army
under date of 25 November 1941 is enlightening. Hoth took com-
mand of the 17th Army on 10 October 1941. As the report covers
the period from the beginning of the war to the date of the report,
all of the delinquencies therein shown cannot be charged against
him. It does not show whether the shooting of the four hundred
prisoners therein noted occurred before or after he assumed
command. The portions of this report significant as showing the
general condition are as follows:

“The PW’s who are still in the army area at present cannot
be evacuated, since they are being required for the activiation
of PW companies to be used for railway maintenance and of
PW construction battalions.

* * * * * 5k *

“Since the beginning of operations altogether 236,636 PW’s
were taken by the elements of the army up to 15 November
1941. Moreover, 129,904 PW’s have passed through the instal-
lations of the army who were taken by units not tactically under
the command of the army, so that since the beginning of opera-
tions a total of 366,540 PW’s were made and evacuated. Ap-
proximately 400 were shot. As for those who died of natural
causes and those escaped, no records are available.

*******

“The rations ordered by decree OKH GenStdH/Gen. Qu.,
IVa (III, 2) No. 1/23728/41 sec., dated 21 October 1941, could
not, of course, be issued to the PW’s even in a single case. Fat,
cheese, soya-bean flour, jam, and tea could not always be issued
even to our own troops.

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“These foodstuffs were replaced by millet, corn, sunflower
kernels, buckwheat, in part by lentils and peas, partly also by
bread.

“Distribution of the ordered rations, either in full or in part,
was not possible simply because rations could not be supplied.
The feeding of PW’s has been possible only from stores found
in the country. The cooking of the food causes additional diffi-
culties since only in rare instances field kitchens were brought
along by the PW’s. Even our own troops, as a result of the
supply difficulties, had to live from the country. The rations
due to them had to be cut down by half for a longer period.

“Clothing is insufficient; above all footwear. Underwear, in
part, is completely lacking. The insufficient clothing is particu-
larly felt during labor employment in the winter.

“Conditions of the clothing situation can only be improved
if all dispensable clothing items are being taken away from the
PW’s who are to be released in the rear area of the army group,
and placed at the disposal of the armies upon request.

“Repair shops have been installed in the transit camps which
are under the jurisdiction of the army. There is a shortage of
material and tools. Deceased and shot persons will be buried
without their clothes and the clothes used again. [Emphasis
supplied.]

|* * * * * * *

“In view of the present number of PW’s, their housing is
absolutely impossible. Brick stoves will be built by the PW’s
themselves.

“After being assigned for labor their health improves since
these PW’s receive supplementary rations. With the existing
shortage of fat and albumen, mortality will increase during the
winter months. Many cases of pneumonia and severe intestinal
diseases have occurred. At the evacuation of the huge numbers
of PW’s taken in the battle east of Kiev, where under the worst
weather conditions only part of the PW’s could be sheltered in
sheds, 1 percent died each day.’’

While not all of these conditions are shown beyond a reasonable
loubt to be the responsibility of Hoth since some reports cover
natters before he assumed command, certain of them are shown
>o be his responsibility. The first paragraph shows the prisoners

585

were not to be evacuated because the army needed them for labor
purposes. Conceding that they were to be used for labor not im-
proper under the rules of war, still it was not lawful to hold
them even under Hoth’s own evaluation of his responsibility that
he must feed them because he exploited them for labor purposes.
The report shows that the rations prescribed for prisoners of war
by an OKH order of 21 October 1941, issued 11 days after Hoth
assumed command of the 17th Army, “could not of course be
issued to the PW’s even in a single case”. True, it shows also a
shortage of food for the army. Both the army and the prisoners
of war were living off the country. The prisoners of war were
held for labor purposes with no food to properly sustain them.
It was 25 November and the Russian winter, whose severity has
here been so emphasized, was upon them. The prisoners had in-
sufficient clothing. There is recorded the obvious conclusion — that
the lack of clothing was particularly felt during labor employment
in the winter. Clothing was so scarce that the shot and deceased
persons were to be stripped before burial.

“In view of the present number of PW’s their housing is abso-
lutely impossible,” is the further statement in the report. “The
cooking of the food causes additional difficulties since only in
rare instances field kitchens were brought along by the PW’s.” It
was not permissible under international law to hold the prisoners
of war for labor purposes under these inhumane conditions. It
was his duty to evacuate them to a place where they could be cared
for properly. While some of the conditions were inherited by
Hoth from his predecessor, there is evidence of neglect that was
continuing after he assumed responsibility in that he held them
for labor under such conditions.

Hoth commented in his testimony that the bad condition of the
prisoners when taken was due to their stubbornness and bad
judgment in not surrendering when there was no hope for them.
In the light of the treatment they received after surrender, there
was little choice between fighting on hopelessly and starving or
surrendering and dying in the 17th Army camp at the rate of
one percent per day. Hoth admitted his obligation to care for
the prisoners in his testimony, to which we have referred, wherein
he said :

“* * * because I exploited these prisoners of war for labor

purposes, and I had to feed them.”

The documents in this case show that units subordinate to
Hoth’s 17th Army and later units subordinate to his 4th Panzer
Army used prisoners of war for labor, consisting of road and
railroad maintenance, work in construction battalions, and digging

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antitank ditches. They show also that 2,071 prisoners of war
were being used on 1 August 1943 for labor in troop supply. And,
on 4 October 1943, 24 prisoners of war were turned over for
loading ammunition. On 3 August 1943, the 11th Panzer Division
reported the construction of 696 meters of antitank ditches and
the proposed construction of 600 meters more for which 586 pris-
oners of war were being used.

The use of prisoners of war to load ammunition was contrary
to international law. We have elswhere in the opinion discussed
what work is or is not permissible for prisoners of war. We
cannot say that the evidence shows as to Hoth, except for the
matter of loading ammunition, a use of prisoners of war that was
unlawful, for it does not appear that any of it was done at the
front or in a dangerous location.

The fact that the enemy was using prisoners of war for unlawful
work as the defendant testified does not make their use by
the defendant lawful but may be considered in mitigation of
punishment.

On 15 July 1941, a report to the 20th Panzer Division contains
the following :

“2 GPU soldiers were captured on 15 July 1941, during a
systematic search of the city.

* * :{: jJ: sj:

“On 15 July, early in the morning a wood factory in the north
of the city started to burn again, after the fire in the city had
been completely extinguished. It is probable that this was
caused again by arson through members of the GPU. The two
captured soldiers were shot, as a deterring example.”

That members of the GPU were soldiers and were to be con-
sidered as such is shown by an intelligence bulletin of Hoth’s 3d
Panzer Group bearing date of 8 August 1941 which specifically
so states.

On 9 September 1941, “Four extremely suspected Red Army
imen were shot who were apprehended in Djedkovo — nearest the
place of attack.” The attack referred to was the firing by ten
or twenty partisans, none of whom were apprehended, on two
motor vehicles of Panzer Group Signal Regiment 3. It is difficult
to see anything in this but murder of prisoners of war as a pure
terror measure.

These reports, to which we have referred, show that the killing
of prisoners of war for the reasons therein stated were not mere
excesses but were in accordance with an approved policy. If
isuch had not been the case, it is not credible that the subordinate

893964—51 39

587

commanders from whose areas the reports came would have
reported the shootings or recorded them without reporting some
action against the perpetrators.

Under date of 29 October 1941, in the war diary of the Ober-
quartiermeister of Hoth's 17th Army, appears the following:

“The billeting of PW's captured in the city and some of the
inhabitants of the country in the building used by our own
troops has proved to be a useful countermeasure against the time
bombs put there by the enemy. It has been our experience, that,
as a result of this measure, the time bombs were found and
rendered harmless in a very short time by the prisoners and/or
the inhabitants of the country/'

To use prisoners of war as a shield for the troops is contrary
to international law.

Hoth said he gave no orders that this be done and he did not
think it was done in his army. However, he admits knowing that
prisoners of war were used as a shield for German troops in
another army and states that he thought his Oberquartiermeister
was reporting on that.

WAR CRIMES AND CRIMES AGAINST HUMANITY
CONSISTING OF CRIMES AGAINST CIVILIANS

Frequent reference has been made throughout the trial to the
notorious Reichenau Order. This order was sent for information
by von Rundstedt of the High Command of Army Group South to
Hoth’s 17th Army in a letter, dated 12 October 1941, which Hoth
in his testimony states that in due course he received.

On 17 November 1941, Hoth issued a similar order over his signa-
ture which speaks the language of Hitler and shows a sympathy with
his ruthless policy of exploiting the country and its population.

The documents clearly indicate Hoth’s general attitude as being
one of ruthlessness and brutality in dealing with the population.
The Barbarossa Jurisdiction Order, which we have referred to
elsewhere as being an illegal order, was passed down by Hoth.
It was clearly susceptible without the strongest of safeguards of
being made criminal in the implementation. Hoth said, “I
received the order and passed it on to the troops subordinate to
me.” There is no testimony that any safeguards were attached
when it was transmitted. On 25 September 1941, an activity
report of Panzer Group 3 was made up covering the period from
January to July 1941. This recites that on 11 June 1941 the
intelligence officer and the army judge of Hoth’s Panzer Group 3
were ordered to Warsaw for a conference with Major General
Mueller, the General for Special Assignments, concerning the

588

Barbarossa Jurisdiction Order. This report bears the handwritten
notation, “Seen 25 September 1941” and is signed “Hoth.” In
that report under the heading “Legal Question” the following
appears :

“On 11 June, the intelligence officers and the army judge were
ordered to Warsaw to a meeting with the General for Special
Assignments with the Commander in Chief of the Army. The
General for Special Assignments, Major General Mueller, after
having read the Fuehrer decree, explained that in future opera-
tions the necessity of war might possibly have to come before
a feeling of law.

* * * * * * *

“One of the two enemies must die ; do not spare the bearer of
enemy ideology, but kill him.

“Every civilian who impedes or incites others to impede the
German Wehrmacht is also to be considered a guerrilla (for
instance : instigators, persons who distribute leaflets, non-
observance of German orders, arsonists, destroying of road
signs, supplies, etc.).

❖ * * * * * *

“Punishments, principles: no delay but immediate proceed-
ings. In lighter cases individual persons can, under certain
circumstances, be punished by flogging. The hardships of the
war require severe punishments (remember World War I : the
Russians in Gumbinnen. If the railroad Tilsit-Insterburg were
damaged, all village inhabitants who lived along that line were
to be shot). In cases of doubt as to the guilt, suspicion will
often have to suffice. Clear evidence often cannot be estab-
lished.”

Hoth testified that his judge advocate who attended the Warsaw
Conference probably reported to him on his return, as it would
have been his duty to do so. He denied any knowledge of the
matters contained in the last-mentioned report and said he did
not remember having read it. When Hoth saw, as we believe he
did, this authoritative construction of the order, if not before,
he must have known that criminal objectives were intended in its
implementation, and this notwithstanding the so-called Brauch-
itsch Disciplinary Order that is claimed to have been designed to
mitigate it. That the order was understood to be criminally
implemented is apparent from an activity report and directive of
the intelligence officer of Hoth’s Panzer Group 3, dated 3 July 1941,
in which it is said:

589

“Insofar as there is proof or well founded suspicion, that
civilians actually are soldiers, assigned for duty as spies or
saboteurs, or who have supported or carried out attacks against
the German Wehrmacht, while wearing civilian clothing, they
are to be segregated from the others and are to be shot upon
orders by an officer.”

and —

“Insofar as concerning civilians proof or the well founded
suspicion is given , that they are soldiers employed for purposes
of espionage or sabotage, or that it concerns those who in civil-
ian clothing have supported or carried out measures against
the German Wehrmacht, they are to be segregated from the
others and to be shot by order of an officer.” [Emphasis
supplied.]

In the cover letter sent out by the 257th Infantry Division in
Hoth’s 17th Army, under date of 7 December 1941, the follow-
ing appears :

“You receive enclosed an excerpt on the way and kind of
conducting interrogations of partisans. This excerpt ivas com-
piled by the army . It must not be brought along when the
deployment takes place * * *.” [Emphasis supplied.]

Hoth in his testimony when asked if the army referred to in the
letter was the 17th Army answered that, “It seems as though
that were the case.” The character of the instructions and the
license they direct is apparent from the following contained
therein :

“B. Directives for the interrogation

“It never occurred yet that an interrogated person incrim-
inated even one other person without being put under heavy
pressure. The following must, therefore, be observed :

All interrogated persons must be warned in a most severe
way to say the truth. They expect anyhow nothing else but that
the methods of the NKWD are applied in the interrogation, that
means they count on being beaten up from the beginning.
The following categories of persons must first be questioned
by third degree ( eindringlich zu vernehmen) (25 on the but-
tocks ), if women are concerned with rubber tubings , if men are
concerned with cowhide or rubber truncheons) : [The material
preceding in italics was crossed out in the original document,
and the following handwritten remark was inserted : Destroyed
in conformity with later order ! to prevent that such things fall
into enemy hands.]

590

“1. Platoon and unit leaders of the destruction battalion.
“2. Returned Colchos — and village leaders.

“3. Veteran partisans.

“4. Individuals who were named by tortured people.

“5. Drivers of high party functionaries.

“One or the other will make depositions on partisans now.
As it is a common experience that the person concerned did not
know anything before and makes depositions now, he is sub-
jected to a more searching interrogation: 25 more with solid
rubber or cowhide, while the question asked is repeated during
the jam session (translator’s note: Actually string orchestra is
literal translation of the German word, ‘Streichorchester’. The
expression, ‘Streich’, has a double meaning in this connection,
as it means as well playing a string instrument as also the
strokes administered to the victim of such treatment as de-
scribed here) and the word, ‘Hovere’ (talk) is added to the
question. This way, e.g.

“Where is the leader of the partisan group? — Hovere!

“What tasks were assigned to you? — Hovere! etc.

“The person concerned will continue to talk, and 25 more
are administered to him, after he was ordered to tell all he still
knows, this way.

“1. Where are other partisans?

“2. Who is with the partisans?

“3. Who cooks for the partisans?

“4. Where are ammunition and food depots hidden?

“5. Who keeps in touch with the partisans?

“The following kind of people have to be interrogated most
severely and searchingly in any case from the very beginning :

“1. Every party functionary, particularly commissars and
Politruks.

“2. Every returned village and Colchos elder.

“3. Individuals named by the tortured people.

“The persons who were questioned most severely, as well
as convicted persons (confront the people concerned!) must
be liquidated at the end of the most severe detailed interro-
gation.”

Presiding Judge Young: That the instructions bore fruit is
apparent from the fact that the 257th Infantry Division immedi-
ately passed this directive down in the form of an order following
almost verbatim the wording of the directive.

A situation and activity report for the period 15-30 March 1942
to the XLIV Corps, then under Hoth’s 17th Army contains the
following :

i

591

“Of the 281 persons who had been turned over to the Partisan
Jaeger Group, 12 were shot for illegally wandering around
without proper identification; 59 as partisans, 78 as Commu-
nists and Komsomols, 82 as spies, 13 for sabotage and refusal
to work, 31 for anti-German propaganda, 1 for stealing army
property, and 5 Jews.”

The foregoing shows that the Partisan Jaeger Group, a unit of
the Wehrmacht, was shooting civilians for not having proper
identification, for being Communists, for being anti-German, for
being Jews, and for refusal to work.

The 257th Infantry Division under date of 3 December 1941,
then subordinate to Hoth’s 17th Army, gave the following instruc-
tion for supervision of the civilian population :

“c. During the combating and the interrogation the severest
measures have to be applied, because, as experience shows, only
the application of the most rigorous methods cause suspicious
elements to make statements. In general, the examinations can
be concluded only by the following :

“(1) Release.

“(2) Transfer to a prisoner or concentration camp.

“(3) Liquidation to be carried out if additional statements
are no longer to be expected. Partisans of special importance
are to be transferred to division section Ic. Liquidations, if they
do not take place during combat or in case of resistance, are to
be ordered by the counterintelligence officer.”

On 7 December 1941, the 257th Infantry Division sent a direc-
tive for combating partisans which we have hereinbefore men-
tioned directing that third degree methods be used, and after no
further information could be secured the person should be liqui-
dated. That these brutal instructions were for the troops is indi-
cated by the statement in the letter enclosing the directives in
which it is said:

“* * * Further instruction of the Partisan Jaeger troops
(partisan hunting units) will take place shortly.”

Hoth left the 17th Army, according to his testimony, about the
middle of April. The same document shows a continuation of sim-
ilar practices up to the middle of May, a month after Hoth relin-
quished command of the 17th Army.

A similar report contained in the last-mentioned document
through 15 April shows the shooting of 114 for the various
reasons stated.

On 9 September 1941, an order by Hoth’s chief of staff relating
to partisans containing the following:

592

“In order to capture the harmless followers as soon as pos-
sible it would seem expedient to treat them extremely well in the
presence of the civilian population (food and cigarettes) so that
this will become generally known and fear of giving themselves
up voluntarily will vanish. Executions are , therefore , to he
carried out far away and unobtrusively insofar as there are
causes for suspicion of partisan activities; otherwise they will
be sent away as PW’s [Emphasis supplied],

* ***** *

“If weapons are found in the possession of partisans or if
public acts of violence are committed against the Wehrmacht,
the partisans are to be shot or hanged by order of an officer
and the reason for it is to be made known to the local population
in a suitable manner. (For instance, a sign could be hung
around the neck of the partisans, stating: ‘This will happen
to everybody who saws down a telegraph pole’). The same
action is to be taken with regard to local inhabitants who sup-
port partisans.”

The foregoing show the implementation of the Barbarossa Juris-
diction Order as extending the classification of francs-tireurs in
accordance with Mueller’s construction of the Barbarossa Juris-
diction Order.

The following shootings on suspicion and for reprisal are shown
by units subordinate to Hoth in his commands :

“Two very suspicious looking men, probably partisans were
seized on 19 September in the region of Pashkovo. They were
shot.”

and —

“Around Bratzkaya Zemla the civilian population took part
in the battle against our forces. Shooting of all male civilians
over 15 years of age was ordered and carried out.”

Hoth in his testimony estimated that about fifty were shot in
this operation.

The intelligence officer’s morning report for IV Corps sub-
ordinate to Hoth’s 17th Army under date of 7 March 1942, notes
that “* * * 10 civilians were shot in public in Novo Alexandrovka
because two civilians attacked an officer (who was lightly
wounded) .”

The intelligence officer’s morning report for XLIV Corps sub-
ordinate to the 17th Army between 13 December 1941 and 10
March 1942 contains the following:

593

“Five hostages were shot as a reprisal measure for a German
sentry being fired on by civilians at Shabelkovka. ,,

On 17 July 1941, the XIII Army Corps reported to Hoth’s 17th
Army, "8 Jews and 2 Poles shot as a retaliatory measure for sabo-
tage of telephone lines.”

A report of the Panzer Group 3, commanded by Hoth, to the
9th Army contains the following:

“A motorcyclist of the 3d Panzergrenadier Signal Regiment
was killed in a hand-to-hand fight by a suspected man, whom
he had relieved of his pistol, in the village of Rostrovski La-
tuishki (10 km N of Ripshevo), on 24 August. Five suspected
civilians who had been apprehended shortly before were hanged
in the village — which, by the way, is inhabited by Latvians who
are absolutely pro-German and anti-Soviets — and the corpses
were left hanging for 8 days.”

In as much as Hoth was temporarily relieved of his command
on 28 November 1943, it well may be that he did not see the
report to which we next turn, which is from Security Sector II
to Panzer Army 4 [which is from Army Rear Area 585 to Security
Sector II and 4th Panzer Army] by teletype dated 27 November.
Hoth says he would have opposed the hostage measure as it
would have been very inexpedient in the Ukraine. The report
states :

“Since mines have been placed in an increasing number in
the area Tshudnov-Miropol, severest measures are to be taken
(against this activity). First, 15 men are to be arrested as
hostages in each of the villages Tshudnov and Miropol. Notices
in the German and Ukrainian language are to point out to the
population, that in case of future placing of mines, 3 hostages
will be shot for each German who is killed and 1 hostage for
each German who is wounded. This will not take place if the
culprits are handed over to the military authorities within 12
hours.

“I order, that numbers of hostages shall be shot at the above
ratio if mines are placed again.

“The population of the districts of Tshudnov and Miropol
will supply mine-searching details, which will search the streets
constantly for mines.

“Reports concerning the seizure of hostages, executions by
shooting, and mines removed by the population are to be for-
warded daily in the daily reports to Korueck 585.

“Confidential agents committed in the area there, are to do
everything in their power to find the mine-placing band, so that

594

a larger operation can be carried out, which will lead to the
total extermination of the gang.”

This may not be held as incriminating Hoth beyond a reasonable
doubt, since it is probable he did not receive it and therefore
could not have countermanded it. It is consistent with the general
policy that prevailed during his period of command.

A directive of the XLIV Corps, subordinate to Hoth’s Panzer
Group 3, at this time, dated 9 September 1941, for the control of
the civilian population contained the following:

“In case of sabotage of telephone lines, railway lines, etc.,
sentries will be posted selected from the civilian population. In
the case of repetition, the sentry on whose beat the sabotage
was committed will be shot. Suitable as sentries are only people
who have a family who can be apprehended in case the sentry
escapes.

“I. Thorough action in accordance with the issued instruc-
tions will be taken with ruthless strictness in all cases where
attempts against the Wehrmacht, its supply institutions or those
of the country have been found out.”

Hoth says this was a corps order ; that he didn’t know about it
but “that on the whole it is consistent with the situation of the
time and of the necessities of that time.” He says he would not
have approved of shooting the sentries.

COOPERATION WITH THE SD

The record discloses that the SD perpetrated a mass killing of
1,224 Jews, 63 political agitators, and 30 saboteurs and partisans
on 14 December 1941 at Artemovsk. This was, at the time, in the
area of Hoth’s command and immediately after the occurrence, it
came to his knowledge. He testified that he then criticized his
chief of staff for not advising him that the SD were in his area
and he, the chief of staff, said he would settle the matter. The
chief of staff issued an order that “the drives on Jews in Arte-
movsk are postponed until the situation at the front is straightened
out.”

The record shows a large scale mopping-up action in Krama-
torskaya by the SD about 6 weeks later. Kramatorskaya at this
time was Hoth’s headquarters. The record fails to show any exe-
cutions as a result thereof. There can be no doubt that Hoth
knew after the Artemovsk incident that the SD, along with its
police functions, operated as a murder organization also. The
record shows after he acquired this knowledge that within his
area his own army police, over whom he had command authority,

595

turned over prisoners and Jews to the SD as a regular practice.
When HotlTs concentration camp, which he says was merely a
collection camp, known as Dulag 180, was dissolved there were
turned over to the SD, 35 prisoners and 25 from the camp hos-
pital. There is no evidence in the record that the SD were a
medical unit or had any hospital facilities.

These cases of turning civilian prisoners over to the SD occurred
continuously from the time of the Artemovsk incident till Hoth
relinquished his command of the 17th Army in the middle of the
following April. * '

The SD during this time maintained liaison with the Ic officer
on HotlTs staff and when Hoth moved his headquarters the SD
moved its headquarters to HotlTs new location. Neither in the
documents nor in the testimony is there any evidence that Hoth
gave any more attention to the SD after he turned the matter over
to his chief of staff who entered the aforesaid postponement order.
Hoth had executive power and it was his duty to protect the
civilian population including prisoners in his area. Notwithstand-
ing his knowledge of the character and functions of the SD, his
possession of the power to curb them and his duty to do so, he
washed his hands of his responsibility and let the SD take its
unrestrained course in his area of command.

On the matters above set forth, and on the record, we find the
defendant Hoth guilty on counts two and three of the indictment.

HANS REINHARDT

The defendant Reinhardt was born 1 March 1887 at Bautzen in
Saxony. He served as a junior officer in World War I and after
the war remained with the Reichswehr. As a major general he
participated in the invasion of Poland as Commander of the 4th
Panzer Division and of Belgium and the Netherlands as Command-
ing General of the XLI Panzer Corps. With this corps he took
part in the invasion of Yugoslavia. Still commanding the XLI
Panzer Corps, he entered the campaign against Russia, the corps
being subordinated to Army Group North. On 5 October 1941,
he was appointed Commander of Panzer Group 3. In March 1942,
he was appointed Commander in Chief of the 3d Panzer Army
which position he retained until appointed Commander in Chief of
Army Group Center on 16 August 1944. Due to differences with
Hitler concerning his conduct of operations, he was relieved of
this command on 26 January 1945. In 1940, he was promoted
to lieutenant general of Panzer Troops and in 1942, to full gen-
eral. The defendant Reinhardt is charged under all four counts
of the indictment. Counts one and four having been disposed of,
there remains to be considered the question of his guilt under

596

counts two and three which charge respectively: war crimes and
crimes against humanity; crimes against enemy belligerents and
prisoners of war, and war crimes and crimes against humanity ;
crimes against civilians.

THE COMMISSAR ORDER

The Commissar Order was transmitted to Reinhardt by General
Hoepner, the commander of Panzer Group 4, and Reinhardt there-
after communicated it orally to his divisional commanders. He
testified that when he transmitted it to his divisions, he directed
orally that it was not to be carried out. He testified further that
General Hoepner was opposed to the order and that he, Reinhardt,
protested it to General Hoepner; that General Hoepner protested
to the army group under von Leeb and presumably, the protest
was carried back from the army group to the Commander in Chief
of the [German] Army. Notwithstanding this alleged resistance
and repudiation of the order, it appears from the documents that
reports of executed commissars shortly began to be sent in from
subordinate divisions and that they were sent on by the corps.

The Russian campaign began 22 June 1941. The 269th Infantry
Division reported on 9 July to the XLI Corps that 34 Politruks
were liquidated. On the same day the XLI Corps reported to
Panzer Group 4 a total of 97 Politruks had been executed in the
corps area up to 8 July. The balance of 63 liquidated commissars
doubtless are chargeable to the three remaining divisions of the
corps, the 1st and 6th Panzer Divisions, and the 36th Motorized
Division. On 10 July 1941, Panzer Group 4 reported to Army
Group North that up to 8 July 1941, 101 commissars had been
liquidated. Out of a total of 101 executed Politruks, 97 were
liquidated by Reinhardt’s XLI Corps, and the balance of 4 by the
LVI AK of Panzer Group 4. At the time of the report, Panzer
Group 4 consisted only of the XLI AK and the LVI AK. There-
after, 71 commissars were executed by the 19th of July by Panzer
Group 4. We have mentioned that Reinhardt testified that he
orally directed that this order not be carried out. A second
defense, which is supported by the testimony of two witnesses,
Bruns, the intelligence officer of Hoepner’s Panzer Group 4 and
Mueller, an ADC of Bruns, is to the effect that all of these reports
were fictitious. The testimony might be more credible if they
had not drawn such fantastic conclusions as that Hoepner clearly
expressed his repudiation of the Commissar Order by having
Bruns read it to the corps commanders and later that he expressed
it by gesticulation. Mueller was more definite as to Hoepner’s
rejection of the order but it is not possible for the Tribunal to
believe in the face of these reports that commissars were not shot

597

pursuant to this order within the area of Reinhardt’s command.
The order was a criminal order on its face, and one which under
the German military regulations and certainly under international
law should not have been passed down by either Hoepner or Rein-
hardt. If international law is to have any effectiveness, high com-
manding officers, when they are directed to violate it by commit-
ting murder, must have the courage to act, in definite and unmis-
takable terms, so as to indicate their repudiation of such an
order. The proper report to have been made from division to
army group level when a request was made from the top level to
report the number of commissars killed would have been that this
unit does not murder enemy prisoners of war.

Counsel for the defendant, in his brief, makes the following
statement :

“War has its own laws, even more than peacetime. One of
the most incomprehensible laws of war is that certain news
spreads through mysterious channels and with unbelievable
rapidity over entire fronts, entire armies and whole countries;
that it even spreads from one’s own frontline to that of the
enemy, and it can never be found out how this was possible.
Of course, this also happened with such an extraordinary order
as the Commissar Order. Several witnesses testified that it was
known among the Russians even at an earlier date than among
our soldiers in the front line.”

Unless the order had been communicated rather extensively,
and as a policy down to low levels and even to the troops, it is
difficult to understand how it would sweep the entire Russian
front. The obvious explanation for this is that it became known
because of its implementation.

That the defense of fictitious reports may itself be fictitious is
suggested by the activity report of one of Reinhardt’s divisions.
The 36th Motorized Division on 3 July 1941 before the need for
any fictitious reports was created by a top level inquiry, notes the
capture of Latvian and Russian soldiers and that two political
commissars were eliminated during the advance. On 4 July, a
political commissar who pretended to be a sergeant was eliminated.
On 6 July, three commissars were eliminated and on 16 September,
a captured Politruk of a Russian rifle regiment was eliminated. It
is not quite comprehensible why the shooting of these five commis-
sars on three different days is reported unless the executions
actually occurred.

In January 1942, an activity report of the 35th Infantry Divi-
sion, subordinate to Reinhardt, contains the following :

598

“* * * -phg reason f or the will to fight may be found pri-
marily in the fact that well in advance the enemy learns how
the commissars and political leaders are treated when captured
by the Germans. The mistake of drawing attention to this has
been made even in German propaganda leaflets. It would have
been better to keep the treatment of the commissars a secret.
It would have sufficed to transport them separately to the rear,
to a camp specially established for this purpose by the corps,
and to take them to task only then and there.”

The Tribunal finds that Reinhardt passed on this criminal
order and bears the responsibility for its execution in his area.

THE COMMANDO ORDER

We have discussed this criminal order generally in a preceding-
part of this opinion. A copy of this order was sent to the 3d
Panzer Army. The war diary of this army for 27 October 1942
shows it was received. Reinhardt, at this time, was in command
of the 3d Panzer Army. On 28 October, the IX Corps, subordinate
to the 3d Panzer Army, notes the order received in its war diary.
We take no stock in the defense that this order was not to be
effective in the East. That the 3d Panzer Army was of the opin-
ion that it was applicable in the East, appears from the war diary
of this army for 18 November 1942, which is several weeks after
the receipt of the order. In that war diary it is stated [NOKW-
3U82, Pros. Rebuttal Ex. 46] :

“Various difficulties have arisen concerning the execution of
the Fuehrer order of 21 October, relative to the shooting of
terrorists and groups of bandits. The Pz. Army asks the army
group to clarify, above all, whether this order Vol. lib, 30a,
merely concerns British terror groups or whether it also applies
to the bands in the occupied area. In this connection, the army
group takes the attitude that, until a new OKW decree is pub-
lished which is in prospect, all bandits are to be shot to death
even if they wear uniforms. Bandits who voluntarily surrender
without being forced to do so by their situation will be treated
as PW’s. An order will be issued to the troops on this subject.”
[Emphasis supplied.]

That the army considered the Commando Order of general appli-
cation is shown by the emphasized portion of the above quotation,
that until otherwise advised, the order was to be carried out
against men in uniform. Another entry in the war diary of the
3d Panzer Army referring to this same situation reads as follows:

“Until new regulations of OKW are published, bandits who
surrender voluntarily without being forced by circumstances,

599

will be treated as PW’s. All other bandits, also the uniformed
ones, will be shot.

“This order will be destroyed after reading, this order will
not be passed on in writing.”

It was a criminal order, Reinhardt passed it down in the chain
of command.

It may be stated as a matter somewhat in mitigation and as
showing the personal attitude of the defendant Reinhardt, that in
November 1943, he issued an order that parachutists are lawful
combatants and are to be treated as prisoners of war. That was
at a time when the German Army was not so flushed with success
and when it was a little more inclined to soften the treatment
meted out to the Russians. The Tribunal has noted it as being
a matter proper, at least for consideration, on the question of
mitigation. It should further be noted in this connection that it
does not appear that Reinhardt, though he received it, ever passed
on literally or in substance the notorious Reichenau Order.

PROHIBITED LABOR OF PRISONERS OF WAR

An order from the commander in chief of the [German] army,
providing that mines were to be detected and cleared by Russian
prisoners of war in order to spare German blood, was issued on
29 October 1941. This order was transmitted in the area of Army
Group North and was implemented in Reinhardt’s area. His
LIX Corps issued an order [on 2 March 1942] providing [ NOKW -
2139, Pros. Ex. 201 ] —

“If it is suspected that roads or places are mined, prisoners
of war or the local population are to walk in front or clear the
mines.”

The activity report of the 3d Panzer Army, dated 15 December
1943, notes that there were five prisoners in Dulag 230 who were
requested for mine clearing and that Dulag 230 was informed
accordingly. A report sent by the LIX Corps to the 3d Panzer
Army covering the months of January, February, March, and
May 1943 relative to the use of prisoners of war for these months,
respectively, shows the following: 246 in supply units, 104 for
billet and field fortification construction; 193 in supply units;
25 for billet and field fortifications; 196 in troop supply units, and
183 for billet and field fortifications; 175 in troop supply services;
and 11 for billet and field fortifications. On 6 January 1944, the
3d Panzer Army furnished 40 prisoners of war to an SS unit for
field fortification work at the front. A report of the 83d Infantry
Division in the 3d Panzer Army shows 25 prisoners of war put
to work by the 2d Rifle Battalion were killed while working. An

600

activity report of the 3d Panzer Army states that on 4 October
1943, 200 prisoners of war were used on field fortifications.
Numerous other documents show the use of prisoners of war on
field fortifications and at the front, their use being so general
that we conclude it was the policy of the 3d Panzer Army under
Reinhardt to use prisoners of war for that purpose.

An order signed by Reinhardt as Commander in Chief of the
3d Panzer Army, dated 18 October 1942, confirms this conclusion
in every respect. Under the heading “Labor Allocation of Pris-
oners of War and Civilians,” he states:

“The urgent need for prisoners of war in the zone of opera-
tions and for the economy and armament industry at home
requires a thorough and planned organization of the labor
allocation of prisoners of war.”

We do not find all of the above uses of prisoners of war crim-
inal. To use them for field fortifications, loading ammunition,
mine clearing, and any other work that is dangerous was clearly
prohibited by international law and constitutes a war crime.

MURDER AND ILL-TREATMENT OF PRISONERS OF WAR

Reports of subordinate units show the hanging of two former
Russian soldiers for being friendly to partisans ; and the shooting
of four Russian prisoners for planning to escape, and six prisoners
of war who had stolen arms and ammunition and tried to escape.
On 15 December 1942, a report shows the shooting of a Russian
prisoner of war since he could not be removed under the eye of
the enemy and within the range of enemy machine guns. Four
days later the same unit reported that two other prisoners of war
had to be shot.

TURNING OVER OF PRISONERS OF WAR TO THE SD

On 24 July 1941, [NOKW-24-23, Pros. Ex. 2UW\ the High Com-
mand of the Wehrmacht issued an order for the screening and sep-
aration of Russian prisoners of war in the camps in the zone of
operation by which politically untenable and suspicious elements,
commissars, and agitators were to be segregated. An activity report
shows that the commander of the Army Rear Area 590, subordinate
to Reinhardt, issued an order of 29 December 1942 containing the
following [ NOKW-2389 , Pros. Ex. 708 ] :

“6. The fetching of prisoners from the prisoner collecting
point for the purpose of interrogation, transfer to a transient
camp, ‘special treatment’, or discharge can take place only
through the Feldgendarmerie Battalion (motorized) 695 and the
Security Police and SD Dorogobush in mutual agreement. In

601

the event that no officer of the Feldgendarmerie Battalion
(motorized) 695 known to the camp commandant of the pris-
oner collecting point, nor the chief of the SD unit Dorogobush,
should be supervising the taking away of the prisoners, a
written authorization issued by these offices must be handed
to the camp commandant. The turning-over of a prisoner may
in any event take place only against a written receipt/'

This Wehrmacht report should be noted for the reason that the
term “special treatment", enclosed with quotation marks, is used
with apparent understanding. The next paragraph to that above
quoted is of interest as relating to labor allocation. It is stated
therein that —

“An allocation may take place only in keeping with the stock
available of able-bodied prisoners. Only those prisoners may
be allocated for labor in whose case no special treatment is to
be expected, and whose interrogation has been concluded."

Since the whole report concerns prisoner of war matters, it
is to be expected that the prisoners who may not be allocated
as “special treatment" are prisoners of war. As an example of
the carrying out of the general policy to eliminate those opposed
to the Wehrmacht, the following appears in a report received by
the 3d Panzer Army :

“On 28 December 1941, the prisoner of war Alesander Wassil-
jew, who worked in a snow-shoveling detail and thereby came
into touch with the Russian civilian population, was arrested
and shot in Shachovaskaya ; he continuously had caused unrest
among the population by talking to the people about the over-
whelming defeat of the Germans and prophesied that the Rus-
sians would soon appear in Shachovaskaya."

In comments emanating from one of Reinhardt's staff officers
relative to the suggestion for the formation of a Russian Red
Cross, it is indicated that he was opposed to authorizing the Red
Cross to make any search for prisoners missing in action and
the reason which he gives is set forth with great frankness. It
is as follows :

“Overwhelmingly large number of POW's deceased without
documentary deposition, and of civilians who disappeared due to
brutal actions."

At this point we refer to the following finding of Tribunal V
in Case No. 7, and adopt it as a correct statement of the law. It
is as follows* :

* United States vs. Wilhelm List, et al., p. 1271, this volume.
602

“Want of the knowledge of the contents of reports made to him
(i.e., to the commanding general) is not a defense. Reports
to commanding generals are made for their special benefit.
Any failure to acquaint themselves with the contents of such
reports, or a failure to require additional reports where inade-
quacy appears on their face, constitutes a dereliction of duty
which he cannot use in his own behalf.”

DEPORTATION AND ENSLAVEMENT OF CIVILIANS
Deportation and enslavement of civilians was carried on within
the area of Reinhardt’s army commands on a scale of great extent.
At the outset of our consideration of this subject, it should be
said that there is no international law that permits the deportation
or the use of civilians against their will for other than on rea-
sonable requisitions for the needs of the army, either within the
area of the army or after deportation to rear areas or to the
homeland of the occupying power. This is the holding of the IMT
judgment and this consistently has been the holding of all of the
Nuernberg Tribunals. It is necessary then only to determine
factually whether with the knowledge, consent, or approval of the
defendant the deportation and enslavement occurred. There is no
military necessity to justify the use of civilians in such manner
by an occupying force. If they were forced to labor against their
will, it matters not whether they were given extra rations or extra
privileges, for such matters could be considered, if at all, only in
mitigation of punishment and not as a defense to the crime. While
we do not, in referring first to a report to the 3d Panzer Army,
dated 6 March 1944, follow the chronological order, we set it
forth first because it deals with the manner of conscription and
the attitude of the army long after the beginning of the war. In
this report the following appears [NOKW-2531, Pros. Ex. 527 ] :

“Partly the workers are being seized in the streets and under
the pretext that they are to work for 2-3 days ; they are being
brought to work without any winter clothing, shoes, mess kit,
and blankets * * *. The indigenous auxiliary police fetched the
Russians out of their houses at night, but partially these people
could buy themselves out of it by giving some alcohol to the
indigenous auxiliary policemen.

“This manner of conscription did not increase the Russians’
willingness to work.”

Apparently due to an error, some terribly diseased and afflicted
persons were sent out on a work assignment. The explanation
contained in the document which is offered in Reinhardt’s defense
shows, probably, a mistake but does not otherwise greatly improve

893964—51 40

603

his situation. It shows how labor recruiting was carried on and
that the army was cooperating. Among other things, it states :

“Army Q.M. [O.Qu.] order to the general [corps] commands
that in case of drives for the recruitment of labor forces a labor
allocation official has to participate right from the start. The
Army Economy Official — Group Labor could supply officials
from his own ranks; but whether this employment could be
achieved speedily enough in each case is a matter still open
to doubt.

“2. The criticized conditions in the recruitment of labor
forces (kidnapping on the street, corruptness of the O.D. men —
(indigenous auxiliary police — etc.) can never be entirely elim-
inated, especially in cases of sudden demand. It is possible that
the criticized events concern the Kaminski drive, in which once
750 workers were supplied. But such abuses are also not en-
tirely avoidable within the area of the divisions. In the case
of the ‘78 year olds, the blind, and the cripples, etc.’ it is,
according to a statement by the Fortification Engineer Staff 7,
a case in which a group of 15-20 people once happened to get
mixed up with a transport in the beginning of February. Re-
sponsibility cannot be fixed any more, as nothing is known
about this in Vitebsk.” [ Reinhardt 208, Reinhardt Ex. 17.]

The Commander of Army Rear Area 590 in a report to the 3d
Panzer Army reported the following assignments : women for the
Reich, 100 ; field fortification construction, men, 956, women, 2199.
His report also contains the following [ NOKW-23U1 , Pros. Ex.
AU] :

“Five hundred male and 500 female workers were conscripted
at the time, as ordered in paragraph 18 of the procurement
order. This conscription, however, was superseded by the sub-
sequent orders concerning the formation of transports of labor
detachments. The following must be said about the organizing
of these transports:

“Nowhere was there any desire or inclination for this labor
assignment ; indeed, sometimes it even occurred that men wept
when they were being shipped away. Almost all of the workers
had literally to be dragged away. This caused very grave diffi-
culties for the local military administrative offices, because all
of the transports had to be assembled at very short notice and
almost simultaneously. There were not always sufficient forces
(military police, military police service) to bring the workers
from remote villages. Those who were brought, however,
sometimes proved to be unfit for work. There was no suitable

604

place to accommodate those who were fit to be sent away, a
place which would have made guarding easy until they could
be shipped away. The workers, however, had to be closely
guarded at all times for otherwise they would have run away.”

The foregoing shows clearly that these people who were used for
work were not volunteers but were rounded up and impressed
into service as slaves.

The [Ober-] Quartiermeister for the 3d Panzer Army on 3
December [1942] made a report to Army Group Center in which was
contained the following [ NOKW-2347 , Pros. Ex. 1560 ] :

“The application of force, unavoidable in putting the popula-
tion to work and mentioned already in one of the regular reports
as causing a great strain, is beginning to show effects. In
addition, matters are rendered more difficult by inadequate food
rations which — according to consistent reports from all dis-
tricts — are not sufficient to satisfy the hunger of the population.

* * * * * * *

“Noteworthy is the generally established fact that the num-
ber of persons staying away from work or of those who must
forcefully be driven to work is on the increase.

*******

“The extent of difficulties to be surmounted can be realized
when bearing in mind that nearly all workers have to he pressed
into service and must often individually he driven to work by
soldiers, cossacks, and members of the auxiliary police .” [Em-
phasis supplied]

A letter signed by Reinhardt under date of 28 March 1943
to the Commanding General of the XLIII Corps shows conclusively
his knowledge and attitude toward the labor program. Among
other things in the letter he said {NOKW-524, Pros. Ex. 455] :

“Time and again, I have, when touring the area, noticed
squads of civilian workers practically idling. Furthermore, the
number of inhabitants assigned to a job does not correspond
to the task which could, with proper planning, he achieved by
half the number. The supervisory personnel (furnished by the
troops, by Organization Todt, etc.) is just standing by and
does not show any military bearing; foremen and supervisors
do not take any steps to urge more working speed. This intol-
erable state of affairs will immediately cease once and for all.
We must keep in mind that in the homeland even German
women and girls are working hard, readily fulfilling what they

605

consider their elementary duty. This being the case, we ought
to be ashamed of ourselves if we did not request the civilian
inhabitants of the occupied territory, called upon to work on
our behalf, to utilize the working day fully. In this respect, I
rather prefer a daily minimum of 8 working hours, of which
the fullest use is made and which include breaks, to longer
hours, half of which is spent in dawdling. The population —
which is being subjected to a much greater strain on the
Russian side — must be compelled to fulfill my requirements, if
necessary through retention of wages, deprivation of food, and
restraint of personal liberty; just as I shall call to account any
supervisory personnel of any description and rank, if my de-
mands are not enforced. Supervision of workers is a military
duty like any other and requires the full efforts of the personnel
assigned.

“It is requested that all military superiors and all organs in
charge of traffic control and of the maintenance of discipline
cooperate with me in the full exploitation of labor of any kind.”

The Commander of the XLIII Corps, to whom this letter was
addressed, on 2 June 1943, issued a directive to draft by force
male and female labor power from the rural communities of the
communication zones. He then specified five rural communities
in which coercive measures were to be carried out. He directed
that the policy be announced as permanent so the population will
come forth from its hideouts and be seized. The effect on the
people is indicated by his statement that the drafted forces will
attempt to dodge the labor allocation with every means at their
disposal. The ruthlessness intended is shown by the direction
that all men and women are to be instructed that they will be
shot at when attempting to flee and the reason given, “* * * only
partisan adherents flee; they undergo corresponding treatment.”
How many so fleeing were shot and denominated as partisans
in the reports, the record does not show. The report states that
for several weeks the population of the rural communities “does
not cooperate in fighting against them (the bandits) in a meas-
ure which is to be expected for the final liberation of Russia.”
To remedy this lack of cooperation with their German con-
querors, all male inhabitants of these rural communities, as well
as females, between the ages of 14 and 45, unless the women had
one child under eight, were drafted for tasks in another region.

A division under the XLIII Corps on 30 June 1943 reported:
“Already it happened that civilians assigned to fortification
work, who up to now did not receive supplementary rations for
heavy work, collapsed due to exhaustion, especially since Rus-

606

sian civilians are being assigned for labor regardless of their
physical fitness.” [Emphasis supplied.]

On 5 January 1944, the 3d Panzer Army issued a directive for
its corps headquarters and rear area which stated [NOKW-2367,
Pros. Ex. 523 ] :

“All persons capable of carrying arms and able to work
must be seized for the allocation of labor. That is to say, in
general, all men and women, age 14 to 55.”

It appears beyond question that men and women and even
children were drafted for work and that they were used in the
main front line. One order says they are to be sheltered and
fed and another that they shall be used ruthlessly and, if the
situation permits, in the front lines also. Another report shows
that “the allocation of entire families for fortification construc-
tion near the front line met with difficulties.”

We are convinced by the documents and the testimony in the
case that in the area of Reinhardt’s army, enforced labor by the
civilians was carried out as a policy and that it was implemented
ruthlessly with Reinhardt’s knowledge and consent, and even
pursuant to his orders.

DEPORTATION AND ENSLAVEMENT FOR LABOR IN

THE REICH

Reinhardt’s policy with respect to this matter is shown by an
order signed by him as Commander in Chief of the 3d Panzer
Army to the effect that [NOKW-3539, Pros. Rebuttal Ex. 39 ] —

“The Fuehrer has charged Gauleiter Sauckel with the direc-
tion of the entire labor allocation program reaching into the
zone of operations. An intelligent cooperation of the military
agencies with the departments of the labor allocation adminis-
tration must make it possible to mobilize the work capacity
of the entire able-bodied population. If success cannot be
achieved in any other way, coercive measures must now be
applied to recruit the required labor for allocation in the Reich.”
[Emphasis supplied.]

This order had wide distribution throughout his command.
Having given such an order he must assume responsibility for
what was done by his subordinate units in response thereto.

We find in the records a report from the Secret Field Police that
a father making his way to the partisans, over the objection of
his children, was shot while so doing. The three children were
sent to Germany to work.

607

When the order came down from the OKH to draft the age
groups 1925 and 1926, Reinhardt’s chief of staff of the 3d
Panzer Army gave an order in which it was specified [ NOKW -
23 UO, Pros. Ex. 4S-4] —

“Beginning 3 August 1943, a transport train with eastern
workers will be dispatched each Tuesday and Friday from the
army area to the Reich.”

The proclamation sent out with these orders stated that “whoever
tries to evade his service obligation will be severely punished.”

A report of 23 July 1943 reveals that a conference was held at
the headquarters of the 3d Panzer Army. This document is rather
significant. A notation of one of the matters discussed is as
follows [NOKW-24.73, Pros. Ex. 487] :

“Severe sanctions against resistance and transgression.

“Transferring guilty persons to the SD? (Lublin?)

“Family members of persons liable to service who have
escaped to be apprehended without consideration for personal
situation for labor allocation Reich; however these are to be
cared for and treated like those willing to work.”

Three days after this conference, the 3d Panzer Army reported
to the Army Group Center. A trenchant statement contained in
that report is [NOKW-2454, Pros. Ex. 489 ] —

“Persons apprehended by force after attempts to evade this
draft at first will be sent to penal camps which must be run
along strict lines.”

An activity report of 4 August 1943 of the 3d Panzer Army
with reference to the labor commitment of the civilian popula-
tion and particularly the 1925 and 1926 classes states [NOKW-2336,
Pros. Ex. J91] —

“The first batches of eastern workers for the Reich have been
assigned to the collection camps without use of unpleasant meas-
ures. In some areas about 50 percent of the persons subject
to the labor draft have fled, possibly by way of joining the
bands.”

A notation under date of 30 October 1943 appears in the war
diary of the Third Panzer Army as follows:

“MVR [Militaerverwaltungsrat] Behnisch, Chief of the Labor
Group of Economy Headquarters 206 in Vitebsk, reports to 0 5
on the allocation of his forces during the ‘Heinrich’ operation,
and on the intended transport of the civilians emanating
(gemachten) from this enterprise. All personnel fit for mili-
tary service and for work, who are seized are to be sent to the

608

concentration camps of Lublin and Auschwitz via the SD camps
and Dulag 125. In any case they may not be turned over for
free labor allocation in the Reich. MVR Behnisch further re-
ports that in the rear area of the II Luftwaffe Field Corps there
are about 8,000 newly arrived civilians, and in the area of the
O.K. Shumilino about 3,000. He asks for a decision whether
any recruits may be drawn from these resettled persons for
labor allocation in the Reich. After being submitted to O. Qu.
this is authorized, but intensive recruiting in Vitebsk, which
according to MVR Behnisch’s opinion would produce 2-3,000
persons, is delayed for the time being.”

This clearly disposes of any contention that the recruitment
those classes for labor in the Reich was on any voluntary
basis. A situation report of the 3d Panzer Army, dated 21 Feb-
ruary 1944, notes —

“Utmost seizure of all unemployed and able-bodied civilians
still loitering about. Recently ordered by Panzer AOK 3/O.Qu./
Qu. 2 dated 10 January 1944, No. 579/44 secret.”

Following this on 4 April, a report of the 3d Panzer Army
shows that 11,000 from the Vitebsk area were found fit for labor
assignment to the Reich and deported. The report further notes
that there was a continuation of labor assignment according to
most recent draft of the order concerning age groups, 1925-
1926.

The foregoing and other evidence in the record convince us
that the forcible conscription and illegal use of civilians within
the area of Reinhardt’s command was a fixed policy. While he
and his witnesses deny that such a policy was in effect, we find
their testimony not credible. Not only were civilian workers con-
scripted for use in the army areas but the orders and reports cited,
and others to which we have not referred, show clearly that the
deportation of civilian workers to the Reich was of such long
continued and general practice, that even were there no orders
signed by the defendant authorizing it, he must be held to have
had knowledge of the practice and of its extent. The record
shows that he did nothing to hinder or prohibit the practice,
that on the contrary he encouraged and carried it out in the area
of his command.

PLUNDER AND SPOLIATION
The evidence on the matter of plunder and spoliation shows
great ruthlessness, but we are not satisfied that it shows, beyond
reasonable doubt, acts that were not justified by military neces-
sity.

609

MURDER , ILL-TREATMENT , AND PERSECUTION OF
CIVILIAN POPULATIONS

Reinhardt passed on the Barbarossa Jurisdiction Order. On 25
February 1942, he gave the following directions to his troops
[NOKW-1921, Pros . Ex. 171}:

“6. If weapons are found in the possession of partisans or
their partisan activity seems quite obvious, the partisans are
to be shot or hung by order of an officer, and the reasons made
public to the population by some suitable manner (for instance,
a sign attached to the partisan with the inscription: This is
what happens to everyone who fells a telegraph pole’) . Similar
treatment should be given to inhabitants who support par-
tisans.”

This shows clearly that in his area they extended the term
franc-tireur in accordance with the Mueller directions at the
Warsaw Conference. The LIX Army Corps and Panzer Group 3,
among other things, ordered —

“The holding of hostages may be deemed necessary. If it is
suspected that roads or places are mined, prisoners of war or
the local population are to walk in front or clear the mines.”

On 31 July 1942, Reinhardt signed an order which, among other
things, stated, “The death sentence may be imposed on every
tenth man if the ringleader or the especially guilty persons can-
not be apprehended.” He states further in the order that every
officer or field police official (not auxiliary police official) is com-
petent to make the decision and, after careful examination, that
such officer shall order the executions (shooting or hanging).

An order signed by Keitel on 16 December 1942 provided
[NOKW-2961, Pros. Ex. 1306 ] :

“The troops are therefore entitled and even obliged to employ
whatever means in this fight without any restraint, also against
women and children, as long as it leads to success.”

This order was sent down to subordinate units by the 3d Panzer
Army on 6 January 1943 and was carried out with ruthlessness.
Reinhardt says his chief of staff transmitted this during his
absence, but throughout the trial it has been the contention of the
defense that the chief of staff took no authority in matters of
policy and did not sign orders unless he knew that they were in
conformity with the will of the commander. We think that is
what occurred in this case. If the order was not in conformity
with his policy, he should have repudiated it. Reinhardt says he
did not return to this sector but there can be no question that he
returned to his command and we have no doubt he learned what
his chief of staff had done in his absence.

610

The 3d Panzer Army on 30 March 1943 passed on an OKH order
in which it is provided that band supporters and band suspects
are to be handed over to the Senior SS and Police Leader for
transfer to a concentration camp “providing they have not been
shot immediately, or hung, or in special cases assigned to the
combating of bands according to section 11 of the circular.” The
XLIII Army Corps, under date of 29 March 1943, suggested to
the 3d Panzer Army the following [ NOKW-U57 , Pros. Ex. 715 ] :

“When in band-infested areas, where the bulk of the bands
consists of forcibly recruited persons, bandits are publicly
hanged or shot, it must be considered that these forcibly re-
cruited people, if only for fear of a similar fate, will be in-
duced to offer the most active resistance to the troops mopping
up. If, therefore, it is not succeeded in eliminating the bandits
immediately on the battle field, they should rather at first be
taken along as prisoners and inconspicuously eliminated only
during the transport. Thus, only the fact of the capture will be
passed on from mouth to mouth, and the number of deserters
will grow in spite of the active counterpropaganda of the com-
missars. It may be advisable, for propaganda reasons, to dress
up some bandit as a member of an East unit or of indigenous
auxiliary police (OD), under inconspicuous but strict guard,
and to show him very conspicuously to the population in the
area of his former commitment. This ruse of war again and
again induces bandits to desert, as experience shows.” [Em-
phasis supplied.]

A directive of the IX Corps dated 26 September 1942 sent to
the Jagdkommando (partisan hunters) describes how they shall
set traps and wait with patience to catch possible partisans or
mine layers. One paragraph in this directive is as follows:

“If the element of surprise is no longer present, e.g., if by
chance local people turn up, the spot selected for activities is
to be abandoned at once unless the inconvenient witnesses can
be done away with quietly.” [NOKW-2113, Pros. Ex. 6.^8.]

This shows the utter disregard for the life of the civilian popu-
lation by elements subordinate to Reinhardt.

SD detachments were assigned by the 9th Army to Reinhardt’s
Panzer Group 3 with directions that the group make further
assignments. An order from the chief of staff of Panzer Group 3
to the LVI Army Corps also discloses such assignments. It must
therefore be said that Reinhardt knew of the SD being in his
area as early as September 1941. That this association with the
SD continued when Panzer Group 3 became the 3d Panzer Army

611

is indicated by the war diary of the 3d Panzer Army, wherein is
set forth, under date of 30 March 1943, an order by the Chief
of Staff of the 3d Panzer Army in which the following appears
[NOKW-1976, Pros. Ex. 656~\ :

“1. Band supporters and band suspects are to be handed
over to the competent senior SS and Police Leaders for transfer
to a concentration camp, providing they have not been shot
immediately, or hung, or in special cases assigned to the com-
bating of bands according to section 11 of the ‘circular.’

“2. The population is to be clearly informed of the difference
between ‘forced labor’ which is carried out under extremely
hard conditions, and the ‘labor allocation to the Reich’ on the
basis of recruitment of labor by the Plenipotentiary General for
Labor.

“In this connection it is ordered:

“I. The band supporters and band suspects apprehended in
the army area are to be handed over to the Einsatzkommando of
the Security Police and the SD for transfer to a concentration
camp. Units of the SD are located at Vitebsk. Demidov, Surazh,
Gorodok, Nevel, Sebezh, Polotsk.”

Not only did Reinhardt’s Army know about the SD, but over
a long period of time, it actively cooperated with it in sending
suspects of all kinds, including civilian men, women, and children
for forced labor in the concentration camps “under extremely hard
conditions.” Thousands of such unfortunates were deported to
the Reich and sent to Lublin and Auschwitz through the instru-
mentality of Reinhardt’s commands.

Among reports indicating Reinhardt’s knowledge of the activi-
ties of the SD, we find such notations as the following :

“Military administrative councillor, Matthes, reports that 700
of the evacuees in PW Transient Camp (Dulag) 230 have been
screened by the SD and that all of them are intended for evacu-
ation to Lublin.”

Dulag 230 was under Reinhardt’s control.

Under date of 2 September, this notation appears :

“SD Vitebsk reports that the evacuation of supporters of
bands to Auschwitz could not be effected as yet because the
railroads did not allocate cars.”

Under date of 18 September, it is noted :

“Qu 2 arranges with SD that in case the evacuation to the
Reich fails to materialize, the people will be deported by the
SD to Auschwitz or Lublin as soon as shipment is possible.
SD is directed to send the 700 prisoners from Granki to PW
Transient Camp 230.”

612

On 6 October 1943, the commander of Dulag 230 reported:

“* * * that a convoy of 31 men, 172 women, and 240 children
had arrived. It consists of the band population rounded up by
the troops. There are now about 1,000 civilians in Dulag
who can be transported”.

and also —

“Where old people and small children are concerned, SD can-
not (as discussed with Obersturmfuehrer Meder) transport the
people to Lublin or Auschwitz.”

On 19 October 1943, the following was reported:

“Visit of the Secret Field Police Group 717 concerning the
question as to which camp civilian prisoners can be sent to,
who are old and infirm and who have small children, and
whose kin have been executed as bandits or bandit supporters,
or have been handed over to the SD to be transported to Lublin.
It seems intolerable to settle these persons anywhere in the
army area because they spread an extremely poisoned atmos-
phere against the Germans.”

An order of 12 August 1943, by the 3d Panzer Army contained
the following [NO KW -2354, Pros. Ex. 727] :

“According to Pz. AOK 3, la No. 6262/43 secret, it is
ordered to evacuate the area designated in the above reference
since it was established beyond doubt that the population
helped the bands during the operations of the 2d and 7th
Jaeger Battalions. SD Vitebsk has declared itself ready to
arrange that the population which is to be evacuated will be
sent to an SD camp (Lublin).”

The distribution list shows that the army sent a copy of the
order to “SD Vitebsk” for information.

Seven days later, on 19 August 1943, another order was issued
relating to the same evacuation and by the same authority.
Among other things, the order stated :

“* * *. This concerns approximately 2,500 persons from the
district of Vitebsk, to whom about 500 civilians from the district
of Surazh will be added. The latter are to be brought to Tran-
sient Camp 230 by the II Luftwaffe Field Corps. Sufficient
equipment for the trip, including additional food, is to be
allowed to the persons to be evacuated. All cattle, agricultural
equipment, and agricultural products remaining will be taken
over by economic detachment, group agriculture. Report on the
goods taken over is to be made to O. Qu. 2/IVa by 31 August
1943.

613

“The request to SD Vitebsk, to separate unmistakable band
elements in Transient Camp 230 and to take them over for the
purpose of accommodating them in Lublin, continues to be up-
held.

“Besides properly looking after them and feeding them which
has already been ordered, Transient Camp 230 will also see
to indoctrinating them with the necessary propaganda (espe-
cially also informing them of the reason for the evacuation —
large sections of the population aiding the bands ; the innocent
ones must suffer with the guilty ones).”

Reinhardt held the executive power for his area and it was
his duty to exercise it for the protection of the population. He
was obligated not to deport them, not to despoil them of their
property, nor to send both those innocent and those guilty of
aiding the so-called bands to concentration camps, as well as send-
ing the 1925 and 1926 groups to forced labor in the Reich. The
orders to do those things were criminal orders and they were
fully implemented by him. He is criminally responsible for
issuing the orders and for the acts done in implementation of
them.

Whether or not Reinhardt knew that Lublin and Auschwitz
were murder institutions is not material. There is no direct
evidence that he did. One of his orders shows he knew that the
forced labor was hard. He knew they were penal camps. He
sent old men, women, and children to them. His own testimony
convicts him of knowledge that the SD killed cripples. He had
known this for 2 years. He knew they operated under their
own authority, conveyed by orders of whose origin and nature he
professed ignorance, and yet he turned over to them large num-
bers of the civilian population over whom he had power and
whom he was under a duty to protect. He turned civilians over
to this organization, over which he also says he had no control.
Slave hunting in his area was so general and long continued that
without the direct evidence pointed out, knowledge would be
imputed to him.

The Tribunal, on all the evidence, finds Reinhardt guilty on
counts two and three of the indictment.

Judge Harding will continue with reading the judgment.

HANS VON SALMUTH

Judge Harding: Hans von Salmuth was born in Metz on 21
November 1888. He became an officer aspirant in September
1907 and served in the First World War, first as battalion and

614

executive officer and then as general staff officer. After the end
of the war he remained in the Reichswehr where he held various
assignments. He was promoted to brigadier general in 1937 and
became Chief of the General Staff of Army Group Berlin. In
September 1939, he became Chief of General Staff of Army Group
North and took part in the Polish campaign. At about this same
time he was promoted to major general. From October 1939 to
May 1941, he was Chief of General Staff of Army Group B, during
which time he was promoted to lieutenant general of the infantry.
From May to December 1941, he was Commanding General of the
XXX Corps and participated in the Russian campaign. From
21 March to 6 June 1942, he was Deputy Commander of the 17th
Army, and from 6 June to 13 July 1942 he was Deputy Commander
of the 4th Army. On 13 July 1942, he was appointed Commander
in Chief of the 2d Army and promoted to general in January 1943.
In October 1943, he was appointed Deputy Commander of the 15th
Army and subsequently became its Commander in Chief, a com-
mand which he retained until August 1944.

He was not a member of the Nazi Party or any of its forma-
tions.

The defendant is charged under counts two and three of the in-
dictment and the charges urged against him in respect to these
counts come under the following headings which we will consider
in serial order: (1) The Commissar Order; (2) The Commando
Order; (3) prohibited labor of prisoners of war; (4) murder and
ill-treatment of prisoners of war; (5) deportation and enslave-
ment of civilians; (6) plunder of public and private property and
wanton destruction; (7) murder, ill-treatment, and persecution
of civilian population ; (8) discrimination, persecution, and execu-
tion of Jews, including cooperation with the Einsatzgruppen in
this program.

1. The Commissar Order — The Commissar Order was received
by the defendant while he was Commanding General of the XXX
Army Corps. The evidence shows that it was distributed to sub-
ordinate units by him. He states that he rejected the order and
acquainted his divisional commanders with his objections. The
evidence does not establish that the order was ever carried out
within the XXX Army Corps while it was under the command of
the defendant. Two instances are cited which, it is urged, show
it was carried out; in one instance within the 17th Army over
which he subsequently became the commander in chief. This in-
stance occurred approximately one month before his arrival. The
second instance relied on occurred in the 4th Army approximately
one month after he assumed command. This instance is con-
sidered ambiguous as to whether or not the commissars were in

615

fact executed after they had been taken prisoner. In neither
instance, however, is it considered that the defendant can be
charged because from the time element, it cannot be said that
they occurred with his acquiescence or approval or due to any
order which he had distributed.

2. The Commando Order — The evidence shows that this order
and also Hitler’s supplement to it were received by the defendant
while Commander in Chief of the 2d Army. On 28 October he
transmitted this order for compliance with a cover letter to
units within his command and requested that all copies were to
be returned to AOK 2 by 10 November. This cover letter was
signed by his chief of staff and shows the initials O.B., commander
in chief. The defendant states that his chief of staff should not
have signed the letter and was not authorized to do so, but he did
nothing to repudiate this action of his chief of staff, nor is it
shown that he reprimanded him in any way therefor.

It is shown further that an order for the 580th Rear Army
Area, signed by the quartermaster, was issued, providing :

“Members of terror and sabotage troops, agents, who fall
into the hands of the Wehrmacht are to be turned over to the
SD without delay.”

and that —

“Any military detention in prisoner of war camps, etc., is
most strictly forbidden, even if considered only as a temporary
measure.”

On 8 October 1942,* the AOK 2 requested clarification from
Army Group B of dubious points arising from application of the
Commando Order.

It is obvious that he transmitted this order for execution
wherever it was considered applicable, whether to British, Amer-
icans, or Russians.

3. Prohibited labor of prisoners of war — Under the conditions
confronting the defendant, it is considered as a matter of fact
that the use in the combat areas of prisoners of war constituted a
use in a dangerous area. Numerous documents and the testimony
of witnesses including the defendant in this case establish this.
Furthermore, Exhibit 226 and Rebuttal Exhibits 58, 59, and 60
show the illegal use of captured soldiers of the Western Powers.
The Western Powers were signatories to the Geneva Convention
as was Germany, and the uses to which they were put were illegal
under the provisions of that Convention. This fact is shown by

* Evidently this date is a recording error in as much as the Commando Order was not
issued until 18 October 1942.

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the documents themselves and the defendant must accept criminal
responsibility for his use of prisoners of war both on the eastern
and western fronts.

Exhibits 524 and 526, among others, are cited to show this
illegal use.

4. Murder and ill-treatment of prisoners of war and Red Army
soldiers — On 25 July 1941, the OKH issued an order which was
transmitted in the chain of command by Salmuth’s XXX Corps.
This was obviously an illegal order in that it provided that Red
Army soldiers “are to be considered guerrillas as from a certain
date, to be fixed in each area, and are to be treated as such.”
This Tribunal finds also that the defendant was criminally re-
sponsible for its transmittal.

On 21 November 1941, von Salmuth transmitted an order con-
cerning partisans to subordinate units which provided that “every
civilian and also every dispersed soldier who is found in the
possession of arms in the region of the XXX AK is to be shot
immediately.” Von Salmuth signed this order and it is found to
be an illegal order. This order was executed within the command
of the defendant.

Concerning the treatment of prisoners of war in the areas under
the defendant, numerous reports from these areas show what must
be considered as an excessive number of deaths by shooting and
otherwise among the prisoners of war. They imply a degree of
negligence on the part of the defendant but we need not discuss
this question. These reports show that prisoners of war were
handed over to the SD, a police organization, and that thereafter
the army exercised no supervision over them and apparently had
no control or record as to what became of them.

Whether or not they were liquidated, as many of them un-
doubtedly were, is not the question. The illegality consists in
handing them over to an organization which certainly by this
time the defendant knew was criminal in nature.

The defendant undertakes to state that he had no supervision
over these prisoner of war camps. From the evidence we are of
the opinion that the defendant was responsible for prisoners of
war within his area and also had control over them and that he
must accept criminal responsibility for the illegal transfer of
these prisoners to the SD.

5. Deportation and enslavement of civilians — Concerning the
question of the use of the civilian population in the army area
of the defendant and the illegal recruitment and transportation of
civilian slave laborers to the Reich, the evidence establishes the
defendant’s responsibility. Numerous documents in evidence
might be cited and, furthermore, documents introduced in rebuttal

617

show that the extension of this program, both in the West and
the East, was one which the defendant strongly urged.

A defense witness, Harteneck, who acted as the chief of staff
of the defendant, shows that this labor was compulsory. The
documents speak for themselves. But if further evidence is
needed, the defendant’s own testimony on the stand shows that
this labor was compulsory. The record shows the defendant was
guilty, both of using prohibited labor of civilians in operations
directly concerned with the conduct of the war and of transport-
ing slave laborers to the Reich.

6. Plunder of public and private property — The evidence in
this case is not considered sufficient to establish criminal connec-
tion for plunder of public and private property.

7. Murder , ill-treatment, and persecution of civilian populations
— The evidence does not establish beyond a reasonable doubt the
transmittal of the Barbarossa Jurisdiction Order by the defend-
ant. The evidence does, however, establish many instances of
the illegal executions of civilians by units subordinate to the
defendant. From this evidence the following exhibits are cited:

From 15 to 30 April 1942, a report of the Feldkommandantur
to the XLIV Army Corps of the 17th Army under von Salmuth
shows the shooting of persons as partisan suspects, Communists,
for stealing army property, as Jews, and the turning over of
Jewish women to the SD.

A report dated 2 September 1942, from the Korueck 580 to
AOK 2 under von Salmuth shows the hanging of persons “strongly
suspected” of sabotage.

Reports from the same Korueck addressed to AOK 2, covering a
period from 7 October to 12 November 1942, show that on 16
October “a large number of suspects” were shot; that in the
localities near Veretenino “several hundreds of suspects were
liquidated” and the town itself burned; that a patrol reports
“three suspicious looking men” were shot.

A report of 2 September 1942, states :

“If the prerequisites for surprise no longer exist, for instance,

because inhabitants appear by chance, the chosen site must

be immediately abandoned if the troublesome witnesses cannot

be eliminated silently.”

A report shows 6,000 persons executed as partisans and agents
by all participating agencies (excluding the SD).

The war diary of the 17th Army under von Salmuth, 24 July
1942, reports that concentration camp Gorlovka was dissolved on
22 July, and that of 655 civilians who passed through, 158 were
liquidated and 23 handed over to the SD.

618

Whether or not these and other executions, shown by the
evidence, by his subordinates were pursuant to the Barbarossa
Jurisdiction Order is immaterial. These illegal executions were
carried out over a wide period of time and by numerous units
subordinate to the defendant.

The evidence also establishes in many cases issuance of orders
which would naturally result in such criminal acts by his sub-
ordinates. Among these is cited an OKW order of 16 December
1942 which the defendant distributed for information and further
action, which provided that the order should not fall into enemy
hands. This order dispensed with the von Brauchitsch disciplin-
ary order as far as partisan warfare was concerned by providing
that no punishment should be imposed upon troops because of their
conduct and that no sentence should be confirmed which contra-
dicted this order. It also provided [NOKW-2961, Pros. Ex. 1306 ] —

“If this war against the bands in the East and the Balkans
is not waged with the most brutal methods, the available forces
will in the near future no longer be sufficient to overcome this
plague.

“For this reason the troops are justified and obliged to resort
in this combat to all measures — even against women and chil-
dren — without leniency, as long as they are successful.”

AOK 2, under the defendant, even recommended a supplement
to this order, submitted on 2 April 1943, to the Army Group
Center which provided [NOKW-473, Pros. Ex. 1523 ] :

“During interrogation of bandits, also that of women, all
means have to be employed in order to get the necessary state-
ments. Interpreters are to be specially trained for the inter-
rogation of bandits. It is frequently necessary to interrogate
an individual bandit several times in order to get a result.”

On 7 August 1941, Salmuth’s XXX Corps received from the
AOK 11 an OKH order of 25 July 1941 concerning the treatment
of enemy civilians and prisoners of war. This order he distributed
down to the battalions of his corps. It provided in pertinent part
as follows [NOKW-1906, Pros. Ex. 24.7] :

“Attacks and all kinds of acts of violence against persons and
objects, as well as all attempts, are to be beaten down ruthlessly
by use of arms until the enemy is destroyed.

“In cases of passive resistance or road obstructions, shoot-
ings, raids, or other acts of sabotage where the culprits cannot
be determined at once and taken care of in the already ordered
manner, collective forcible measures are to be carried out

893964—51 41

619

without delay by order of an officer not below the rank of a
battalion commander, etc. It is specifically pointed out that it
is not necessary previously to take hostages to hold liable for
future offenses. The population is held responsible for order in
their areas even without special previous announcement and
arrest.

“Attacks and assaults on natives assigned by us to work (for
instance, road construction, agriculture, trades, factories) and
on supervising personnel, constitute attacks on the occupation
forces and are to be punished as such. ,,

This and other evidence in this case prescribed the employ-
ment of ruthless collective measures and terror activities against
the civilian population. On 26 November 1941, the XXX Corps
distributed to subordinate units an order, in pertinent part as
follows [ NOKW-25SS , Pros . Ex. 630 ] :

“The incidents which happened during the last days, during
which several German and Rumanian soldiers lost their lives
during attacks of partisans, require severest countermeasures.

“2. Therefore immediately the following persons are to be
taken hostages in all places where troops are stationed :

“a. Persons whose relatives are partisans.

“b . Persons who are under suspicion to be in contact with
partisans.

“c. Party members, Komsomols, party applicants.

“ d . Persons who formerly were members of the party.

“e. Persons, who, prior to the moving in of the German and
Rumanian troops had any official functions, i.e., village magis-
trates and deputies, members of the local Soviet, party officials
of any kind, directors of state institutions of any kind, sana-
toriums, etc.

“/. Persons who are found outside the closed villages without
a special permit.

“3. These hostages are to be accommodated in concentration
camps. Their food must be supplied by the inhabitants of the
village.

“4. From these hostages 10 are to be shot for each German
and Rumanian soldier who is killed by partisans, and 1 of the
hostages is to be shot for every German or Rumanian soldier
wounded by partisans ; if possible they are to be shot near the
place where the German or Rumanian soldier was killed and
then they are to be left hanging at that place for 3 days.”

The record shows such collective actions to have been carried
out by subordinate units under the defendant's various commands.

620

The Tribunal finds from the evidence above cited and other
evidence in this case that the defendant sponsored, acquiesced in,
and approved such illegal executions within the areas of his
command.

8. Discrimination, persecution, and execution of Jews, includ-
ing cooperation with the Einsatzgruppen in this program — On
1 August 1941, a Ukrainian woman reported a secret meeting
of some fifty local Jews and Bolshevists who she said planned to
collect and destroy leaflets dropped by German planes requesting
the Ukrainian population to resume work in the fields, and to
attack the German military offices after the Jews had become
strong enough by calling in other persons.

On 2 August, the XXX Corps reported to the 11th Army, a
pertinent part of which is as follows [NOKW-650, Pros. Ex. 738] :

“On the basis of this report the SS Einsatzkommando 10a,
stationed in Olshanka was informed immediately. The Ein-
satzkommando was requested to dispatch a detachment to
Kodyma immediately in order to prevent the execution of the
intentions of the Jews and Bolsheviks on the same afternoon
by an extensive action in the Jewish quarters. The action was
executed under the command of SS Hauptsturmfuehrer Prast,
and 300 members of various troop units were also employed
to block off the city quarter involved. The action started on
1515 hours and was finished at 1900 hours.

“III. Results.

“A total of 400 male persons were arrested, mostly Jews.
These were subjected to an interrogation in the market place of
Kodyma. It was remarkable that many of these Jews were
from Balti, Soroki, Yampol, and other localities formerly occu-
pied by German troops, in particular former leading Com-
munists. 98 of these 400 persons were proved active members
of the Communist Party (functionaries and the like) and/or
urgently suspect of participation in the intended plots.

“The rest of the persons consisted to a great part of asocial
elements of the Jewish race. The first mentioned 98 persons
were shot to death outside of the village pursuant to the direc-
tive of SS Hauptsturmfuehrer Prast, after they were briefly
screened and interrogated once more.”

On 2 August 1941, the 11th Army made the following entry
in its war diary [NOKW-1465, Pros. Ex. 739] :

“Preparation of a plot by Jews and Komsomols in Kodyma.
Gang leaders and suspects were shot. In addition 170 hostages
arrested.”

621

On 3 August 1941, Sonderkommando 10a reported to Einsatz-
gruppe D as follows [ NOKW-586 , Pros. Ex. 7-41] :

“* * * In agreement with the commanding general, 99 of
the persons arrested were shot, among them 97 Jews, approxi-
mately 175 were taken as hostages, the rest released. Execu-
tions were carried out by 24 men of the Wehrmacht and 12 of
the Security Police * * *”.

On 2 August 1941, Sonderkommando 10a filed a report concern-
ing this instance, pertinent parts of which read as follows :

“By interrogation of and confrontation with Ukrainian in-
habitants of the town, 98 persons were identified who had
taken part in the meetings or who had behaved in an insub-
ordinate manner to the German military, or who had belonged
to the Jewish intelligentsia.” [ NOKW-579 , Pros. Ex. 7.40.]

The headquarters of the XXX Corps on 1 August was located
in Kodyma and the defendant was in command of the area, in-
cluding that city which consisted of about 10,000 people. The
defendant on the stand denies his participation in or knowledge
of this incident until after it had taken place and he is supported
in his position by the testimony of his then chief of staff, Harte-
neck and his Ic, Eismann. The stories of these three witnesses,
however, are not consistent. Nor is the defendant’s own testi-
mony consistent with itself.

The record further shows that subsequent to the execution
herein described, that on the evening of 1 August and prior to
8:30 p.m., the defendant issued a proclamation to the population
of Kodyma as follows [ NOKW-586 , Pros. Ex. 7U1~\ :

“1. A number of persons were shot today, because it had
become known to the German Command that preparations were
being made for secret attacks against the troops of the Ger-
man Wehrmacht in the town.

“2. Besides, a further number of persons were taken hostages
and brought to the prison camp. They will not be harmed if the
population of the town shows a quiet and loyal attitude towards
the troop detachments in the town and towards the German
soldiers.

“3. However, should any troop detachments or individual
German members of the Wehrmacht or any installations of the
German Wehrmacht in the town or in the vicinity of Kodyma
be attacked, the German Command shall be obliged to have more
executions ordered. Only a quiet and loyal attitude of the
entire population secures the lives of those hostages.

622

“4. It is herewith being ordered that until further notice
the population of Kodyma has to provide for the provisioning
of these hostages. The town mayor is arranging for details
with the local commander and the commander of the prison
camp.

“5. Starting immediately the civilian population is forbidden
to leave their homes between 2030 and 0400 in the morning.
Anyone being in the streets during this time will be shot.
“Kodyma, 1 August 1941

The German Command”

On 2 August, he signed an order to his troops which reads
as follows [ NOKW-2963 , Pros. Ex. 1803 ] :

“2. Participation of soldiers in actions against Jews and
Communists

“The fanatical intent of the members of the Communist party
and of the Jews to stop the German Wehrmacht at all costs
must be broken under all circumstances. In the interest of the
security of the army rear area it is therefore necessary to pro-
ceed with all vigor. Sonderkommandos have been charged with
this mission. At one place, however, members of the armed
forces participated in such an action in an unpleasant manner.

“For the future I order :

“Only those soldiers may participate in such actions who
are expressly ordered to do so. I also forbid all members of
the troops subordinate to me any participation as spectators.

“In as much as members of the armed forces are ordered
to participate in such actions, they must be under the command
of officers. These officers are responsible that every unpleasant
excess on the part of the troops be avoided.”

It also appears in none of the documents or the testimony
herein that the defendant in any way protested against or criti-
cized the action of the SD or requested their removal or punish-
ment. The only punishment inflicted, according to the testimony,
upon any one was apparently a 20-day confinement sentence
against a member of his own staff for unauthorized participation
in this action.

If we are to accept the rather flimsy pretext that some Jews in
Kodyma were planning action against the Wehrmacht, the evi-
dence established that the executions recorded were far beyond
the punishment of those involved in any such conspiracy and
constituted a murder action, and the Tribunal finds from these
documents and other evidence that the defendant acquiesced in and
approved this criminal action.

623

Certainly from then on the defendant knew of the murder
activities of the SIPO and SD. When he turned over prisoners
of war and civilians to them, he knew what could be expected
as to their fate. When these units operated in his area he knew
the murderous functions they performed. Notwithstanding, on
7 August, he transmitted the OKH order of 25 July 1941, which
provided [ NOKW-1906 , Pros. Ex. 2U7 ~\ :

“Suspected elements who, although they can not be proved
guilty of a serious crime, seem dangerous because of their
attitude and behavior are to be handed over to the Einsatz-
gruppen or the Kommandos of the SIPO (SD). The moving
about of civilians without travel authorization must be stopped.”

On 24 July 1942, Korueck 580, which was the rear area of the
AOK 2 under von Salmuth, directed :

“A Sonderkommando of the Security Police and of SD 4a
has been attached to AOK 2 for the carrying out of special
security police tasks outside of the jurisdiction of the troops.
The Sonderkommando carries out its mission on its own re-
sponsibility. The AOK will coordinate the tasks of this Sonder-
kommando with those of the military counterintelligence, the
activity of the Secret Field Police, and with operational require-
ments.”

And on 4 July 1943, while Commander in Chief of the 4th Army,
the defendant signed a report as follows:

“III. Collaboration with the GFP ( Secret Field Police),
Senior SS and Police Leaders, Plenipotentiaries of the Chief of
Security Police, the SD and the Einsatzstab Rosenberg.

“Collaboration with all German offices was very good. Espe-
cially in the corps areas, the cooperation of the GFP (Secret
Field Police) with the commands proved very advantageous.”

On 26 December 1944, he issued a directive, signed by his chief
of staff, as follows:

“7. The Sonderkommando Ua of the Security Police and the
SD.

* * * is subordinate to the army with regard to routing, sup-
plies, and accommodations.

“The Kommando receives its operational orders from the
Chief of the Security Police and the SD.

“The army has the right to issue orders when they are re-
quired in order to avoid interference with operations. Besides,
it is the responsibility of the Ic/AO to coordinate the tasks of
the Kommando with the interests of the military counterintelli-

624

gence, the activities of the GFP and the requirements of the
operations.

“The head of the Kommando must effect a close collaboration
with the Ic/AO of the army. Since the operational area of the
Kommando is as a matter of principle restricted to the army
rear area (with the exception of individual cases) a close col-
laboration with the O.Qu./Qu.2 and the Commander of the Army
Rear Area is also indicated.

“Counterintelligence tasks within the troops and their coun-
terintelligence protection are the sole tasks of the GFP. (Initial)
Kl.”

The record does not establish the extent or location of the
liquidations pursuant to this program carried out within those
areas, but it does establish his cooperation with the Einsatz-
gruppen, knowing their murderous functions.

On 24 May, while in command of the 17th Army, the defendant
distributed an order to subordinate units, requiring the regis-
tration of all citizens except Jews, foreigners, Red Army soldiers,
and certain other categories, and provided that:

“Persons supplying shelter to new arrivals (also to members
of the family) without the certificate or with a forged certifi-
cate are shot to death just as those persons who take quarters
in a place (hide overnight) , without having obtained the written
permission of the mayor.”

In other words the order provided for the registration of certain
civilians and excluded others, including Jews, who apparently
were to be shot for not having the certificate with which they were
not provided.

For the reasons above stated concerning this defendant, we find
him guilty under counts two and three of the indictment.

KARL HOLLIDT

Karl Hollidt was born in Speyer on the Rhine on 28 April 1891.
After a normal education, he became an officer aspirant in July
1909, and in November 1910 became a second lieutenant of in-
fantry. In the First World War he was a combat soldier and was
wounded. Subsequent to the First World War he served with the
Free Corps and later was accepted into the Reichswehr or One
Hundred Thousand Man Army as a captain. He stated in his
affidavit that he was promoted to brigadier general in the sum-
mer of 1938.

He did not participate in the Polish campaign but, at the onset
of the war, took over command of the 52d Infantry Division and

625

was committed for the defense of Saarbruecken in the West Wall.
In April 1940, he was promoted to major general. In November
1940, he was given command of the 50th Infantry Division. He
participated in the invasion of Greece and later, from Rumania,
participated in the invasion of Russia. In February 1942, he was
made general of the infantry (It. general) and given command
of the XVII Corps of the 6th Army. In January 1943, he was
appointed Commander of Army (Armeeabteilung) Hollidt, which
was later reorganized as the 6th Army under his command.

In February 1943, he was promoted to Generaloberst (general).
In April 1944, he was relieved of his command and retired to
inactive duty. In March 1945, he became liaison officer of the
chief of civilian administration in the Ruhr district where he
remained until April 1945.

Aside from the charge of crimes against peace, heretofore dis-
posed of in this opinion, charges under counts two and three of
the indictment will be dealt with under the following headings :
(1) The Commissar Order; (2) The Commando Order; (3) pro-
hibited labor of prisoners of war; (4) murder and ill-treatment
of prisoners of war; (5) deportation and enslavement of civilians ;
(6) plunder of public and private property and wanton destruc-
tion; (7) murder, ill-treatment and persecution of civilian popu-
lation.

1. The Commissar Order — The evidence shows that the de-
fendant Hollidt received in writing this order or a similar order
providing for the shooting of political commissars. The defendant
testified that he instructed his regimental commanders not to
comply with this order. The only report in evidence as to such
executions is from the 50th Division; it is the ambiguous state-
ment found in [NOKW-2945, Pros.] Exhibit 1265. A later report
submitted by the XVII Army Corps of the 6th Army on 15 Feb-
ruary 1942, discloses the execution of two commissars. From this
report it is not clear that the commissars were executed after
capture. We can only construe such documents favorably to
the defendant.

Furthermore, the defendant denies that he, on this date, had
assumed command of the XVII Army Corps and alleges that
he did not see this document. It is true that his service record
discloses that he was assigned to this corps in January 1942.
However, an assignment and the assumption of command are dif-
ferent; and assuming that he had taken command in January,
it can hardly be said that the execution, if such is assumed, grew
out of any action or neglect on his part in view of the length of
time he had been with the command.

626

We therefore find from the evidence that the defendant was
not criminally connected with this order.

2. The Commando Order — The XVII Army Corps received this
order and, on his return from leave in early November 1942, the
defendant Hollidt read it. He stated that he saw no reason to pass
on the order and the evidence does not establish that he did so,
and there is no evidence to show that it was ever carried out by
units under the defendant.

We are therefore unable to find the defendant criminally con-
nected with this order.

3. Prohibited labor of prisoners of war — Documents pertaining
to this matter upon which the prosecution relies pertain to the
time when the defendant was in command of the Armeeabteilung
Hollidt [later] the 6th Army. At that time he was in the course
of retreat which covered some 1,500 kilometers, and his army
was in a difficult and deplorable condition at various periods dur-
ing this retreat, and he defended his use of prisoners of war to
some extent upon the exigencies of the situation which confronted
him. This constitutes no legal defense but is only in mitigation.
From the factual point of view that the defendant was in retreat
and subject to heavy, unexpected attacks it is evident that the
employment of prisoners of war in constructing field fortifica-
tions and for labor with combat units necessarily put them in a
position of greater danger than the same use would have sub-
jected them to on a more stable front.

The evidence in this case shows that over a wide period of
time prisoners of war were used in the combat zone for the con-
struction of field fortifications by units subordinate to him which
could only have been done with his knowledge and approval. Re-
ports show that prisoners of war were in fact killed and injured
by an attack from enemy mortars.

We can only find from the evidence that prisoners of war were
used under the defendant in hazardous work with the knowledge
and approval of the defendant and that he is criminally respons-
ible therefor.

U. Murder and ill-treatment of prisoners of war — This charge
is based in part upon certain documents which show that pris-
oners of war were shot by units subordinate to the defendant.
These documents are by no means clear as to the circumstances,
or to the effect that the shootings were unjustified; but on the
assumption that they were, it is considered that such instances
would have to be classified as excesses committed by troops with
which no criminal connection of the defendant is established.

The other exhibit on which the prosecution relies under this
heading is [NOKW-2807, Pros.] Exhibit 1528, an order pertain-

mg to the shooting of parachutists. The Tribunal is not of the
opinion that this order constituted an illegal order and we there-
fore find no criminal act established against the defendant under
this heading.

5. Deportation and enslavement of civilians — The evidence in
this case establishes without question the illegal use of civilian
labor by units under the defendant’s command with his knowledge
and consent. This labor was not voluntary and involved the use
of civilians in the construction of field fortifications contrary to
international law.

The evidence also established that the defendant participated in
the recruitment of slave labor for the Reich under the compulsion
of orders to do so. He alleges that he was opposed to this program
of recruitment of labor to be sent to Germany. [Document Hollidt
146.] Hollidt Exhibit 146 shows that any disapproval was based
upon the fact that he needed such labor for his own purposes.

6 . Plunder of public and private property — In connection with
this charge we consider it established by the evidence and par-
ticularly by [Document NOKW-2788, Pros.] Exhibit 573 that
the defendant considered civilian authorities subordinated to the
army in matters concerning evacuation, and he directed that
"everything which could be usable to the enemy in the area must
be destroyed if no evacuation is possible.” The Tribunal does
not feel that the proof establishes that the measures applied were
not warranted by military necessity under the conditions of war
in the area under the command of the defendant. Nor does the
proof establish what property was removed to the rear with his
knowledge and consent.

We are therefore unable to find the defendant criminally re-
sponsible under this heading.

7. Murder, ill-treatment and persecution of civilian population
— The proof in this case does not establish that the Barbarossa
Jurisdiction Order was ever transmitted by the defendant. The
order upon which the prosecution relies is a drastic military order
for the suppression of partisans and to secure the area of the 50th
Infantry Division against guerrilla activities by the population.
The Tribunal does not believe that the issuance of this order in
itself constituted an illegal act for which the defendant should be
held criminally responsible. It is true that this order provides for
the shooting of persons whose "partisan activities are proven by
their confessions or by credible testimony of witnesses without
court martial proceedings” and it can be inferred that it was
derived from the Barbarossa Jurisdiction Order.

If in fact the Barbarossa Jurisdiction Order was received and
transmitted in the 50th Division, the order of the defendant places

628

a limitation upon its enforcement to the effect that only those
persons who were proved by their own confession or by credible
witnesses to have been guerrillas were to be shot. The above limi-
tation upon the provisions of the Barbarossa Jurisdiction Order
is to his credit rather than detriment.

The Tribunal is unable to find beyond a reasonable doubt that
the defendant is criminally responsible in these particulars.

Concerning the responsibility of the defendant for actions of
the GFP or Secret Field Police, the documents cited do not estab-
lish criminal responsibility upon his part under international law.

With regard to the SD operations within the 6th Army, it is
considered that there is no evidence to establish that those activi-
ties were confined to more than their legal functions as a police
organization in connection with guerrilla warfare within the area
of the defendant.

For the reasons set forth, in connection with the defendant’s
criminal responsibility for the illegal use of prisoners of war and
for the illegal use of civilians and their illegal deportation to the
Reich, we find the defendant guilty under counts two and three of
the indictment.

Presiding Judge Young: Judge Hale will continue with the
reading of the judgment.

OTTO SCHNIEWIND

Judge Hale: He was born on 14 December 1887, and entered
the navy in 1907 as a midshipman and received various promo-
tions up to his appointment as admiral at the end of 1940. He
became Commander of the Fleet in 1941 and remained in this posi-
tion until his retirement at the end of 1944.

The principal charge against him was that of crimes against
peace, which has been heretofore disposed of in this opinion.

The remaining charges under counts two and three are based
upon (1) The Barbarossa Jurisdiction Order; and (2) The Com-
mando Order.

The Barbarossa Jurisdiction Order was sent by OKW to OKM
on 14 May 1941, and received the following day. The defendant
did not see it until 20 May 1941. At that time he was Chief of the
Naval Command Office and Chief of Staff of the Naval War Staff,
a department in the Naval Command Office. He relinquished this
command on 12 June 1941, to become Commander of the Fleet.
The Barbarossa Jurisdiction Order was not passed on to sub-
ordinate units until 17 June, nearly a week after he had left his
command. It seems the delay was due to some question as to
the legality of this order. It was first sent to the Legal Department

629

of the Navy Defense Office before it was passed down to subordinate
units, which, as pointed out, was after Admiral Schniewind’s
departure. The prosecution’s brief has this rather naive state-
ment, “For the period after the receipt of this order, during
which time he was still Chief of Staff of SKL, Schniewind has
offered no proof that he had done anything to discourage or stop
the further distribution of this criminal order.” We decline to
adopt this line of reasoning.

The Commando Order was distributed by SKL to subordinate
units on 27 October 1942, after the defendant became Commander
of the Fleet. It was sent to his headquarters and his subordinate
units.

There is no evidence it was implemented by him or enforced
by any units subordinate to him. From the very nature of the
order it is apparent it could but have little, if any, relation to
his command of the surface vessels engaged in fighting and sub-
ordinate to him, viz, the battleships, cruisers, destroyers, torpedo
boats, speed boats, and mine laying ships.

We find the defendant not guilty under counts two and three
of the indictment and he will be discharged by the Marshal when
the Tribunal presently adjourns.

KARL VON ROQUES

The defendant Karl von Roques was born 7 May 1880. During
the First World War he was general staff officer, and after the
war remained with the Reichswehr. On 31 January 1933, he was
released from active duty until 23 May 1939, during which time
he was active in the Civil Air Raid Protection Service at Berlin.
On 1 December 1939, he became a divisional commander. From
the middle of March 1941 until 15 June 1942, he was Commander
of the Rear Area Army Group South. From about 10 September
1941 until 5 October 1941, he held a command at the front, also
remaining during this time in command of the Rear Area Army
Group South. From 27 October 1941, until 10 January 1942,
he was absent from his command on account of illness, during
which time Lieutenant General Friderici deputized for him as
Commander of the Rear Area Army Group South. During April
1942, he was absent two weeks on furlough. On 15 June 1942, he
was transferred to the Fuehrer reserve. At the end of July
1942, he was appointed Commander of the Rear Area Army Group
A (Caucasus). This appointment became effective for the south-
ern part of the former Rear Area Army Group South at the
beginning of August and for the Caucasus at the beginning of
September 1942. In the middle of December 1942, the defendant

630

was retired because of old age and did not participate further in
the war. His last rank was lieutenant general to which he was
promoted in 1941.

The defendant von Roques is charged with war crimes and
crimes against humanity, which is all that we here consider in as
much as we have elsewhere disposed of the charges of crimes
against peace and the conspiracy to commit crimes against peace.
These crimes under the evidence are only such as were committed
while the defendant was Commander of the Rear Area of Army
Group South and of the Rear Area of Army Group A. We shall
consider these under the heading of : ( 1 ) The Commissar Order ;
(2) prohibited labor of prisoners of war; (3) murder and ill-
treatment of prisoners of war; (4) The Barbarossa Jurisdiction
Order; (5) hostages and reprisals; (6) ill-treatment and perse-
cution of the civilian population; (7) partisan warfare.

Von Roques’ testimony discloses that he had in the area of his
command executive power as the representative of the occupying
power in his area. He stated that he owed a duty to the civilian
population because he needed its cooperation. Neither his testi-
mony nor his actions show that he appreciated the fact that he
owed a duty as an occupying commander to protect the popula-
tion and maintain order.

General Haider in his testimony succinctly defined executive
power as follows [TR. p. 1555] :

“The bearer of executive power of a certain area unites all
the legal authorities of a territorial nature and legislative
nature in his own person.”

The responsibility incident to the possession of executive power
is well stated in the judgment of Tribunal V* as follows :

“ * * * This duty extends not only to the inhabitants of the
occupied territory but to his own troops and auxiliaries as well.
The commanding general of occupied territories having execu-
tive authority as well as military command will not be heard to
say that a unit taking unlawful orders from someone other than
himself was responsible for the crime and that he is thereby
absolved from responsibility. It is here claimed, for example,
that certain SS units under the direct command of Heinrich
Himmler committed certain of the atrocities herein charged
without the knowledge, consent, or approval of these defendants.
But this cannot be a defense for the commanding general of
occupied territory. The duty and responsibility for maintain-
ing peace and order, and the prevention of crime rests upon

* United States vs. Wilhelm List, et a!., Case 7, p. 1256, this volume.

631

the commanding general. He cannot ignore obvious facts and
plead ignorance as a defense.”

In the Yamashita Case decided by the Supreme Court of the
United States, on which case we have elsewhere commented in
the judgment, it is stated:*

“These provisions plainly imposed on petitioner, who at the
time specified was military governor of the Philippines, as well
as commander of the Japanese forces, an affirmative duty to
take such measures as were within his power and appropriate in
the circumstances to protect prisoners of war and the civilian
population.”

We are of the opinion that command authority and executive
power obligate the one who wields them to exercise them for the
protection of prisoners of war and the civilians in his area; and
that orders issued which indicate a repudiation of such duty and
inaction with knowledge that others within his area are violating
this duty which he owes, constitute criminality. The record shows
orders by the defendant, knowledge, approval, and acquiescence
in acts by troops under his authority, and by agencies within his
area which violated the most elementary duty and obligations
owed to prisoners of war and the civilian population by the com-
mander of an occupying army, having command authority and
executive power.

1. The Commissar Order — We have heretofore held this order
criminal and need not further comment thereon. Von Roques
admitted that he learned of this order in June or July of 1941.
He denies having passed it on but from a consideration of the
documents and the extensive implementation of the orders by
units under his command, serious doubt is cast on the truth
of his testimony and that of some of his defense witnesses; but
whether the order was or was not passed on by him, its imple-
mentation was so extensive in his territory as to require action
on his part to prevent the criminal action that was carried on
by the units under him and agencies in his area. Commissars
were regularly shot with his knowledge, and he did nothing
about it.

One paragraph of the Commissar Order in the light of the docu-
mentary evidence is important. It reads as follows:

“II. In the rear areas — Commissars arrested in the rear area
on account of doubtful behavior are to be handed over to the
‘Einsatzgruppe’ or the ‘Einsatzkommandos’ of the SS Security
Service (SD), respectively.” [ NOKW-1076 , Pros. Ex. 57.]

* United States Reports, Cases Adjudged in the Supreme Court. In re Yamashita, 327
United States 16.

632

The documents disclose that the Security Divisions 444, 213,
and 454 for much of the time were subordinate to von Roques.
He contends that in the early part of the war against Russia,
these security divisions were subordinate to Army Group South,
but while they were subordinate to the army group in the early
days of the war merely for simulating an attack they were “to
remain fully subordinate to the commanders of the rear areas
of the army groups.”

On 20 June 1941, the 454th Division had the Commissar Order.
An order of this division, 2 August 1941, provided for segregation
in the camp of “politically intolerables” and suspected partisans,
commissars, and “instigators” who were to be dealt with by the
camp commandants, in accordance with special orders issued.

An order of the 444th Security Division, bearing date of 14
June 1942, requires the groups of the Secret Field Police to
submit reports to section Ic of the division by the 10th and 25th
of each month, giving the number of commissars identified and
listing them as commissars with the troops, civilian commissars,
and commissars turned over to the SD ; and if no commissars had
been identified, a report to that effect is required. This order, as
noted before, is dated 14 June 1942 and von Roques says he left
for the Fuehrer reserve on 13 June. There is a reference in the
order to two previous orders that were dated, respectively, 29
August 1941 and 30 January 1942. It is apparent that the matter
covered was not new to the divisions, and that a year after the
war began von Roques’ troops were carrying out the Commissar
Order.

A teletype dated 25 July 1941 from von Roques’ Rear Area Army
Group to the Security Division 213 announces the arrival of an
SS Brigade on 24 July and says it is to be committed on 26-28 July.
Under the same date, 25 July 1941, Jeckeln, the Commander of the
SS Brigade, issued an order for a mopping-up operation describing
towns and locations shown by the operational maps of 20 July
and 5 August 1941 to have been throughout that time in von
Roques’ Army Group Rear Area. In his order of commitment
Jeckeln states that contact is to be established with the Ukrainian
militia if present in the various towns. He states “that Ukrain-
ians who are still wearing the Soviet Uniform are to be treated as
prisoners of war for the time being”; that arrested commissars
are to be transferred to him, Jeckeln, for thorough interrogation
by the SS leader of his staff, and that similar agents or Jews who
offered their services to the Soviets are to be treated accordingly.
Six days later, this same SS and Police Leader, Jeckeln, reports as
follows [NOKW-1165, Pros. Ex. 51] :

633

“To: 6th Army
“One copy each to :

“Reich Leader SS and Chief of the German Police

“Commander, Army Group Rear Area, General von Roques

“Commander, Army Rear Area, Major General von Putt-

kamer

“Chief of the Regular Police, General of the Police Daluege.

“II

“1. By request of Generalfeldmarschall von Reichenau, the
Reich Leader SS made available the 1st SS Brigade for a mop-
ping-up operation in the army rear area and/or army group
rear area.

“The carrying out of this operation in the area of Zviahel,
Sluch Valley, Nov. Miropol, Shepetovka, Zaslav, Ostrog, Horyn
Valley, Hoszcza, took place according to the directives of the
Chief of Staff of AOK 6 in accordance with the Commander of
the Army Rear Area, Major General von Puttkamer, and the
Commander of the Army Group Rear Area, General von Roques.

“2. The units subordinated to me had the order as far as they
were available for this operation :

“Arrest and/or execution of (a) remaining parts of the 124th
Soviet Rifle Division, ( b ) armed bands, ( c ) guerrillas, ( d ) per-
sons who have assisted the Bolshevist system * * *.

* * * * * * *

“9. Total number of persons captured — 135 soldiers of
Ukrainian nationality transferred to transient prisoner camp
(Dulag).

“Shot — 73 Russian soldiers (guerrillas) ; 165 functionaries
and other persons who have rendered considerable service to
the Bolshevist system, among them 4 women; 1,658 Jews who
have rendered considerable services to the Bolshevist system,
and who reported Ukrainians to Bolshevist rulers.”

It is clear from this that von Roques’ Army Group South [rear
area] knew of this commitment, permitted it in its area, and
received a report after it was completed. It is clear that 73 Rus-
sian soldiers were shot as guerrillas, that 165 functionaries were
shot, and that 1,658 Jews were shot. From the face of the report,
it is apparent that these 1,896 executions were all in violation of
international law. Von Roques says that this was done on Reich-
enau’s responsibility and not his, but a large part of the opera-
tions were in the area of his command. He admits that he quar-
tered the SS Brigade, and that his chief of staff reported the
accomplished fact to him. Certainly after 1 August 1941 von Roques

634

could never contend that he did not know that it was the function
of the SS and SD to exterminate commissars and Jews.

A report of the Chief of the Security Police and the SD, dated
17 July 1942, shows that the SD at Vladimir- Volnysk gave special
treatment to 36 commissar functionaries from a Russian officer’s
camp and to 76 Jewish Bolshevist officers who were planning to
escape. This place was in von Roques’ area according to the
operational map of 20 July 1941, and von Roques in his testi-
mony said the boundaries of his area were fixed by 10 July 1941.

An activity report of the 454th Security Division for the month
of November 1941 stated that 24 Politruks and officials of the
NKVD were shot for illegal activities. [ NOKW-2926 , Pros . Ex.
1310 .]

On 24 August 1941, only 24 days after the mass killing of Jews
and functionaries which we have referred to, von Roques signed
an order in which he stated that the SD is to participate in the
screening of prisoners in order to have possible unsuitable ele-
ments segregated. This order was with respect to policies for
the combating of partisans. The witness Fruechte was a physician
at Dulag 160 in the rear area of Army Group South. At the
prisoner of war camp, he testified the SD searched for commis-
sars. His testimony in this respect is as follows [TV. p. 9100 ] :

“To the best of my knowledge there was a directive to the
effect that prisoners of war were to be screened for the presence
of commissars and Politruks. In actual practice it only hap-
pened very rarely. I only remember two cases, since the com-
missars had, in most cases, been liquidated before the prisoners
had arrived in the camp. I only know of two cases, one in the
camp Kirovograd where a man who was charged with being a
Politruk was interrogated by a judicial officer and by the com-
mander. The second case which I recall occurred in the main
camp Khorol where a noncommissioned officer of the field police,
when a column of prisoners arrived at the camp, immediately
segregated one commissar and shot him on the spot. He wanted
him shot already in the camp; I happened to be in the camp
at that time, but I told him that nobody must be shot in the
camp. Therefore, he took him away, had him undressed, took
off his clothes, and had him shot at the next corner.”

And [TV. p. 9102 ] —

“I want to refer back to the other subject matter. I don’t
believe I was understood correctly. I didn’t say then that only
on two occasions searches were carried out. Of course, searches
were carried out all the time, but only in two cases something
was actually discovered. It was a matter of course for the
German guards that every incoming transport of prisoners of

635

893964 - 51 -

[2

war was screened as to the presence of political functionaries,
but only on two instances something was actually discovered,
as I said, because in most cases the people had been liquidated
prior to the transport reaching the camp. I wanted to supple-
ment this statement to my last answer.”

Dulag 160, where Fruechte was medical officer, was located at
Khorol. Fruechte’s testimony is supported by that of the witness
Blumenstick, who was an inmate of this camp, and testified that
there was an order that commissars, Politruks, officers, and other
staff workers were immediately to be assembled in one group ; that
on one occasion while there, he saw either seven or nine people
shot, and that among them prisoners of war, commissars, and
three Jews.

The commander of the Rear Area Army Group South, the de-
fendant von Roques, is number four on the distribution list of the
order from the OKH which we next consider. This order of 7
October 1941 definitely provides for the SD to enter the camps in
the rear areas, and there can be no misunderstanding as to what
was to happen to those whom they segregated and removed from
the camp. Among other things contained in the order are the
following :

“* * * Sonderkommandos of the Security Police and Security
Service (SD) will be set up, in accordance with the directives
enclosed herewith, in the transit camps of the rear army area
to segregate on their own responsibility unbearable elements.

*******

“b. In agreement with the commanding officers of the rear
army area (district commanders for prisoners of war), the
operations of the Sonderkommandos have to be regulated in
such a way that the segregation is effected as unobtrusively as
possible and that the liquidations are carried out without delay
and at such a distance from transit camps and villages as to
ensure their not becoming known to the other prisoners of war
and to the population.

*******

“cl. In the transit camps of the rear army area in which a
segregation by Sonderkommandos could not yet be effected, pro-
cedure according to previous regulations and under the respon- i
sibility of the camp commanders should be carried on. Upon
arrival of the Sonderkommandos the segregation of unbearable
elements is exclusively the task of the latter. Segregations exe-
cuted jointly, etc., must not take place.

636

“3. This order must not be passed on in writing — not even
in the form of an excerpt. District commanders for prisoners
of war and commanders of transit camps must be notified
verbally.”

It is apparent from this order that it was considered so bestial
to be fit to be seen only by those to whom it was addressed,
among whom was the defendant von Roques, for it was forbidden
to pass it on in writing, even in the form of excerpts. It provides,
as will be noted, that the district commanders for prisoner of war
and transit camps must be notified verbally. Von Roques’ Army
Group Rear Area received this order for it was on the agenda for
t discussion at the “Commander’s Conference” in the Rear Area
Army Group South on 17 November 1941, under the heading
1*1 “Authority of the SD in prisoner of war transient camps (new
lt| decree) .” Whether von Roques saw this order is not material,
for operations were carried on in camps under his jurisdiction
il and control in accordance with it by the SD, who could enter
>1 such camps only with his permission.

»l On 15 May 1942, five hundred prisoners segregated in Dulag 160
were shot. This is testified to by Dr. Fruechte, camp physician
Dulag 160. His testimony on this occurrence is as follows
( Tr . v. 9133 ) :

; “Q. Now, with reference to the prisoners who were executed

by the SD in Dulag 160, how were they accounted for? Was
there any record ever made of what happened to them, or, how
they were checked off, or, do you know the procedure?

“A. It was as follows : the SD came to Khorol with the mis-
sion — I myself talked with the SS Untersturmfuehrer, a non-
commissioned officer; their mission was to shoot all Jews and
all other persons who were in some way suspects. Some 50
civilians had remained in Khorol. Some were craftsmen who
were still needed. In addition, all prisoners of war had re-
mained in Khorol and a number of persons who were detained
in the prisoner of war camp as suspects, that is a suspicion of
being partisans, Jews, gypsies, Communists, functionaries, etc.
The SD first had all Jews detained in the local prison in Khorol,
all of them civilians; then the SS Untersturmfuehrer went to
the camp; in the camp a list had been compiled by the camp
management, recording all persons who were not Jews but who
were suspects. The Jews didn’t have to be checked because
they were to be shot just as the Jewish civilians without any
formalities. The SD Untersturmfuehrer then had two or three
hundred suspects file past him on 2 days and put on his list,
behind each name an ‘F’, which denoted ‘Free’, or an ‘E’, which

637

meant ‘to be shot’. All persons who were assigned an ‘E’ were
put together with the Jews and on 15 May they were shot to-
gether with the Jews.

“Q. And how many were there in all?

“A. I already stated, a total of approximately 500; thus,
there must have been 450 Jewish prisoners of war and suspect
persons from the camp because 50 local civilians were still there
in addition.”

No comment is required on this testimony. Again the testi-
mony of the witness Blumenstick corroborated it, for he states
that he was marched from Khorol, Dulag 160, to Kremenchug,
with 12,000 or 15,000 Russian prisoners of war. Those unable
to keep up in the march were shot. Blumenstick testified that
three were shot by his side because they were exhausted and fell,
and that he thought probably 1,200 were killed for this reason.
Fruechte also heard from those of the troops who accompanied
these marches that the exhausted prisoners of war were shot and
left lying by the roadside. At the time of these occurrences at
Dulag 160, it was within the area of von Roques. All of the fore-
going incidents occurred in the rear area of Army Group South.

Those hereinafter noted occurred in the Rear Area Army Group
A, of which von Roques assumed command at the beginning of
August as to part and 1 September 1942 as to the remainder of
such rear area. The 454th Division, subordinate to him shot two
partisans for being Communists, also 37 active Communists. Part
of this shooting was done by the SD, though the report showing it
is a report of the 454th Division. From the foregoing documents
and orders, and oral testimony and other evidence in the record,
there can be no question but that defendant von Roques, if he
did not hand down the Commissar Order, received it and from the
beginning of the campaign knew it was being carried out in his
area.

2. Prohibited labor of prisoners of war — Von Roques received
the OKH order on 31 July 1941 with respect to the allocation of
labor, in which it was directed that commanders in the army group
rear areas would carry out labor allocations in the interest of the '
operations. It was directed further that prisoners must be offered
for work to all large scale organizations, such as supply districts,
road and bridge construction battalions, railroad engineer relay
points, ground personnel units of the Luftwaffe, economic offices,
Organization Todt, and officers charged with the construction of
winter quarters. This order probably was illegal in that it may
have permitted and authorized work not permissible under inter-
national law. Apparently von Roques passed it down to his divi-
sions, but there is no evidence that prisoners were used except for

638

work such as clearing snow from roads and work of this char-
acter. There is a picture that shows prisoners of war loading
ammunition at a point which on the date of the picture is not
shown by the operational map to have been in von Roques' area.
Other maps before and after show it in his area. Von Roques
testified that no prisoners of war were used for forced labor
in his area. On the whole record, we are not satisfied that
the evidence is sufficient to establish the defendant's guilt of using
prisoners of war for prohibited labor.

3. Murder and ill-treatment of prisoners of war generally —
Von Roques denies that he distributed the Commando Order, but
paratroopers were shot as guerrillas in his area. An order by
the Chief of Staff of the Rear Area Army Group South, bearing
date of 9 August 1941, was directed to be distributed to all depart-
ments. Apparently the order was issued in reply to an inquiry
about the treatment of captured paratroopers. Statements con-
tained in the order are as follows :

“It has to be insisted that every paratrooper is a guerrilla
who, as a civilian, in any way opposes the German Wehrmacht
and its institutions.

“He is therefore also to be treated as a guerrilla on principle.

“Only if paratroopers report to a German headquarters on
their own or have themselves brought there by Ukrainian
militia to whom they voluntarily surrendered will they be
treated as prisoners of war.

, “Statements of captured paratroopers that they were forced
into this service are not to be believed at all, since these state-
ments in all probability are made according to orders.

“Only through ruthless measures can the paratrooper plague
be opposed successfully.”

The defendant von Roques in his testimony said that his troops
understood this order in the way he intended it, which was that
paratroopers in uniform were not to be shot but treated as pris-
oners of war. It will be observed that there is no such exception
contained in the order. Clearly none was intended. Subordinate
understood it according to its literal terms.

A report of the director in charge of the [Secret] Field Police in

Army Group Rear Area 103, which was under von Roques,
shows the shooting of 49 parachutists as guerrillas.

The war diary of the 444th Security Division, under date of 21
March 1942 [NOKW-2871, Pros. Ex. 1317 ] at which time the order
battle shows it was subordinate to von Roques, contains a report
the shooting of nine “parachute saboteurs” by the Field Police.

639

A report of the Einsatzgruppen, bearing date of 12 November
1941, contains the following [ NO-2830 , Pros. Ex. 949] :

“* * * Among those executed by Sonderkommando 4a in the
second part of the month of October 1941, until the date of this
report, in addition to a comparatively small number of political
functionaries, active communists, people guilty of sabotage, etc.,
the larger part were again Jews, and a considerable part of these
were against Jewish prisoners of war who had been handed over
by the Wehrmacht. At Borispol, at the request of the com-
mander of the Borispol PW camp, a platoon of Sonderkommando
4a shot 752 Jewish prisoners of war on 14 October 1941 and 357
Jewish prisoners of war on 18 October 1941, among them some
commissars and 78 wounded Jews, handed over by the camp
physician.”

Defendant von Roques stated that Borispol at this time was in
his area. It will be observed that this action occurred at the
request of the camp commander. It will be observed further that
it was subsequent to the mass murder by the SD on 27 and 28 of
July, to which we have heretofore referred. Apparently at this
time von Roques had taken no steps to advise his prisoner of war
commanders that they were to have no further traffic with the SD.

A report of the Feldkommandantur 194 to the Commanding
General, Rear Area Army Group South, on 13 April 1942 shows
that 126 prisoners of war were handed over to the SD in Cherni-
gov. While von Roques testified that he was on leave in Berlin
and did not receive this report, we do not deem this material
because at this time for a long period of time he had had knowl-
edge that the SD were a murder group, and it was his business
with such knowledge to see that prisoners of war were not turned
over to them. He had had ample time to do this before going on
leave to Berlin.

Another occasion on which prisoners of war were murdered is
evidenced by a teletype which von Roques admitted having read.
It is a report of the 24th Infantry Division, dated 15 October 1941.
Therein is contained the following [NOKW-1615, Pros. Ex. 257 ] :

“Devoting every effort to the task, the removal of prisoners
proceeds according to order. Insubordinations, attempts to
escape, and exhaustion of prisoners make the march very diffi-
cult. Already there are over 1,000 dead following executions
by shooting, and exhaustion. In Aleksandriya, no preparations
have been made by PW transit camp 182 for the permanent
accommodation of 20,000. Novo Ukrainia allegedly only for
10 , 000 .”

640

Oil the same day that the above report was received, the Com-
mander in Chief of the Rear Area Army Group South made a
report to the Army Group South in which he stated the following :

“At 24th Infantry Division the march is made difficult by
insubordinations, attempts to escape, and exhaustion of PW’s.
Following executions by shooting and exhaustion 1,000 dead.”

On the agenda for a commander’s conference on 17 November
1941, under the heading of “Prisoners of War” appears this
statement :

“Shooting to death by 24th Infantry Division of prisoners
of war unable to march. Countermeasures.”

Also appearing on the agenda is the statement :

“Lieutenant General of the Infantry von Roques, the Com-
mander of the Rear Area Army Group South, starts a two
months furlough for a cure. His deputy is Lieutenant General
of Infantry Friderici. * * *”.

It is clearly indicated by this that on 17 November it was known
that the shooting of prisoners by the 24th Infantry Division
because they were unable to march had occurred. It is clearly
indicated that von Roques was still in command on 15 October
for he initialed the teletype of that date and signed an order com-
mending the 24th Infantry Division for its participation in the
movement of prisoners, under date of 26 October 1941.

The witness Blumenstick, who made this march as a prisoner of
war, testified that three men were shot near him because they
were too exhausted to keep up with the march. He testified
further [ Tr . pp. 9139, 91J^0 ~\ :

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“From Khorol to Kremenchug, we had to march in groups of
20 men and 5 men in breadth. The Jews who had remained
alive were to head this group, then followed some commissars,
another group of officers. They were guarded very heavily
and then the other nationalities followed on this march from
Khorol to Kremenchug. People who tried to obtain some food
were shot immediately, whenever they deviated from the march-
ing formation to the right or to the left. People who were unfit
to march, who couldn’t go on any more, were shot immediately,
and were left to the right and left of the road. They were lying
prostrate with their faces to the earth and with their hands
stretched forth.”

“As we prisoners assumed at the time, we estimated the num-
ber between 1,200 and 1,500.

641

“Q. Can you tell the Tribunal how many people were trans-
ported at that time?

“A. We estimated about 12,000 to 15,000.”

Dr. Fruechte, who was medical officer at the prisoner of war
camp, testified [TV. pp. 9106-07 ] :

“I can only remember one instance in which I know positively
that on the march prisoners of war were shot, and this march
was the one that took place in the middle of October. I cannot
recall the exact date but it was directed from Khorol to Krem-
enchug. The camp Khorol was too crowded and there was
an order to transfer about 20,000 prisoners of war cross
country marching on foot to Kremenchug. I, as a camp phy-
sician, was ordered by the camp management to make notes when
the prisoners filed through the gates of the camp and to segre-
gate prisoners who looked weak and exhausted. I did that,
and a number of people of whom one could see that they would
not be able to physically withstand the strains of the march I
segregated. Later on soldiers who either participated in the
march or others who passed the stretch of road between Krem-
enchug and Khorol on vehicles said that all people who were
exhausted * * *.”

And—

“A. I said that shortly after the march had taken place, the
personnel of the camp was informed by soldiers, some of whom
had participated in the march as escorts, or by other soldiers
who had passed the stretch of road where the march took place
in some way or other, that those people who couldn’t march any
further were shot. They also told us that the corpses were left
at the road and that the whole stretch of road up to Khorol was
marked by the corpses left there.

“Q. Can you tell the Tribunal why you were ordered to seg-
regate the weak people?

“A. So that only those people were to participate in the march
who would be able to stand the strain ol the mai'ch.

“Q. Who gave this order to you please?

“A. The camp commandant.”

General von Tettau, who was in command of the 24th Infantry
Division, gave an affidavit in which, among other things, he stated
that he knew nothing about the shooting of prisoners of war
unable to march. Since he knew nothing about it, he could not
explain on cross-examination how the matter came to the knowl-
edge of von Roques so that he could report it to Army Group
South. This affidavit is not convincing on this point. It is

642

is-

proper to state, however, that the order given by von Tettau
which effected the transfer of the prisoners concerning which
Dr. Fruechte testified is a clear and humane order.

An order from the High Command of the Army specifically
states that security tasks in the rear area of the army and army
groups embraces among other things “guarding and transfer of
prisoners of war, the allocation of prisoner of war labor detach-
ments.” Von Roques as commander of the Rear Area Army Group
South had control of the prisoners of war, and it was his duty
under international law to provide and care for them within his
area and to treat them humanely.

Bearing the date of August 1941 is a report of Jeckeln, Higher
SS and Police Leader and Commander of an SS Brigade, giving
an account of an operation. This report shows that 73 Russian
soldiers were captured and shot as guerrillas.

As showing the general condition that prevailed in the Rear
Area Army Group South, a report from von Roques’ Army to the
OKH, dated 20 December 1941, contains [ NOKW-1605 , Pros. Ex.
272] :

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“Prisoners of war.

“The mass deaths of undernourished prisoners of war in the
Dulags (transient camps) increasingly attracts unwelcome
attention among the civilian population. The mass of the pris-
oners of war is unable to work due to exhaustion.”

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Another enclosed report shown in the same document, dated
21 December 1941, sets forth graphically the conditions of the
prisoners of war in the Rear Area Army Group South. It reads
as follows:

“1. On 20 December 1941, the total of prisoners of war in
the four prisoner of war camps located in the Rear Area Army
Group was: (Dulag 160, 182, 205, Stalag 346) 52,513 prisoners
of war.

“2. Mortality rate of prisoners of war in the camps :

“a. Dulag 160: From 12,959 prisoners of war, an average
of 10 deaths per day, 28.02 percent a year.

“b. Dulag 182: From 7,507 prisoners of war, an average of
18 deaths per day, 87.05 percent a year.

“c. Dulag 205: From 9,271 prisoners of war an average of
21 deaths per day, 82.06 percent a year.

“d. Stalag 346: From 22,776 prisoners of war an average of
50 deaths per day, 80.1 percent a year.”

The testimony shows that many, in fact the greater part, of the
prisoners here referred to were taken in the battle of Kiev and
Urman, which occurred in the middle of September. This was

643

6 weeks before von Roques temporarily left the area. It would
not have been possible for the conditions indicated to have grown
up during the one month of his absence had proper provisions
been made for these prisoners. This occurred in the area over
which von Roques had control and is evidence of the gross neglect
that was exercised in carrying out the obligations of international
law as expressed in the Geneva and Hague Conventions.

There is evidence in the record that von Roques returned on
10 January 1942. There is a report of the Commander of the
Rear Area Army Group South, dated 31 January 1942, which
shows that conditions had not improved, and that in three of the
Dulags, which then contained an aggregate of approximately
30,000 prisoners, they were dying at the rate of 106 percent yearly
in one [camp], 262 percent yearly in another, and 254 percent in
the third.

Another report shows the general mortality rate in February
in five of the camps, containing 38,508 prisoners of war, to have
been 2,814 dead or 7.5 percent monthly. For the month of March
in the same camps, out of a total of 42,078, 1,707 dead were
counted, or a mortality rate of 4.1 percent monthly.

The chief medical officer with the Commander of Rear Area
Army Group South reports an inspection of the prisoner of war
hospital and the prisoner of war camp of Dulag 205 and states
that there are “impossible sanitary conditions and advanced star-
vation of prisoners of war”.

A report of the Commander of the Rear Area Army Group South
to the OKH Quartermaster General, which bears von Roques’
initials and is dated 16 January 1942, states that on 13 January
1942 there were 46,371 prisoners of war in the camps. The lack
of food is stressed and this statement appears:

“Until 1 April, therefore, the high mortality rate will prob-
ably account for loss of 15,000 prisoners of war.”

The report, which is signed by the Chief of the General Staff of
the Rear Area Army Group South, concludes with this statement :
“There is no doubt that for the time being labor allocations
of these prisoners of war who still are in the camps must be
abandoned almost completely. Only by this and by simultaneous
improvement of food supplies will it be possible to save at least
a fraction of the considerable labor potentiality which lies in the
prisoners of war. Otherwise, it has to be expected that about
46,000 prisoners who are now in the Rear Area Army Group
South will have eliminated themselves in a few months by death
and diseases.”

No comment is necessary to show the extent of the neglect of

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these prisoners. Von Roques was responsible for the prisoners of
war in his area during the time these conditions existed, as shown
by the record in the case.

The Barbarossa Jurisdiction Order — We have discussed gen-
erally the character of this order, which opened the door for much
of the criminal activity of the German Army in Russia. Von
Roques handed it down to his subordinates. He says he empha-
sized the necessity of maintaining the discipline of the troops. It
was sent to his three Security Divisions, 213th, 444th, and 454th,
and to 14 Feldkommandanturen.

The 454th Security Division, on 2 August 1941, issued an order
providing, among other things, for the arrest of civilians and that,
“If they appear in any way suspect, they are to be handed over
by the PW transient camps to the SD”, and that, “In the rear
area of the army group they are to be transferred to the Einsatz-
gruppen and Kommandos of the Security Police and SD”.

An order of the 213th Security Division, dated 22 August 1941,
contained the following:

“Civilians, who are sufficiently suspected of espionage, sabo-
tage, or partisan activity are to be shot after interrogation by
the Secret Field Police. Nonresidents who cannot sufficiently
prove the reason for their presence, should, if possible, be
handed over to the SD commandos, or otherwise be transferred
to a prisoner of war camp for further action by the SD com-
mandos. Young boys and girls who are often used by the
enemy are not to be excluded.”

Not to be outdone by his divisions in implementing in bloody
fashion the Barbarossa Jurisdiction Order, von Roques himself,
23 August 1941, issued an order in which the following appears
[NOKW-2590, Pros. Ex. 605] :

“In case weapons are still found, the offenders will be pun-
ished according to the regulations concerning guerrillas with
capital punishment. Should the participation of broad circles
of the population be probable, or if it is the matter of an ammu-
nition depot, an officer occuping the post of at least a battalion
commander will order the execution of collective punishment,
i.e., mass executions, or that villages be burnt to the ground
partially or entirely. The latter shall, however, be carried out
only if the billeting of the units is not endangered. In consid-
eration of the Russian conditions it is required that each supe-
rio r exercises ruthless measures for the security of the unit.

“The execution of collective punishments will be reported
daily in the evening reports as a special event.”

0

Later, on 21 March 1942, von Roques' chief of staff issued an
order cautioning units in the combat zone about shooting those
arrested for espionage, suspicion of espionage, sabotage, or par-
tisan activities without informing the intelligence officer of the
Secret Field Police, because by so doing important information
might not be uncovered or might be lost. Von Roques, on his
examination, pointed out that such information would be lost “if
those people are shot without the Secret Field Police." The life of
a suspect was of no concern to the Wehrmacht; but the information
which the Secret Field Police might extract from him was precious
and must on no occasion be lost. Von Roques testified at some
length that the Secret Field Police did not shoot suspects unless
the matter was passed upon by an officer of the rank of lieutenant
colonel, but he wavered so much that his testimony is not credible
on this point. Von Roques turned cases over to the Secret Police
and used them as his investigators. Under such circumstances,
it was his duty to direct and channelize their action in such a man-
ner that they did nothing that he could not control. It was his
duty to see that his troops and the Secret Field Police which he
used in his area did not have and act within a sphere of competence
derived from some other source that permitted action by them that
he was charged with a duty to see did not happen.

A teletype to von Roques, dated 2 October 1941, initialed by him,
shows four suspects shot by the 213th Security Division. A report
of 25 January 1942 by the Higher SS and Police Leader to the
Commander of the Rear Area Army Group South says that on
23 January four suspect individuals were apprehended and “sum-
marily shot". Von Roques says it was ordered by the police
leader on his own responsibility and there was no reason for
him to intervene, nor could he.

Other reports show that civilians and suspects were shot with-
out even the minimum of judicial protection being afforded them,
but merely on the order of a troop or police officer.

That von Roques knew of the criminal activities of the Senior
SS and Police Leaders and their units is conclusively shown by
an order issued by him under date of 1 September 1941, which is
in part as follows:

“3. Executive measures against certain parts of the popula-
tion (in particular against Jews) are expressly reserved to the
forces of the Senior SS and Police Leader, especially in those
districts which have already been pacified.

“The troops themselves will liquidate on the spot only such
natives as have been proved or are suspected of having com-
mitted hostile acts, and this only in compliance with orders of

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officers; collective measures may be ordered only by an officer
with at least the rank of battalion commander. No doubts can
be admitted in this respect. Any arbitrary shooting of natives
including Jews by individual soldiers and any participation
in executive measures of the Senior SS and Police Leader must
be considered as insubordination and punished by at least discip-
linary measures, unless court procedure is required.”

From the foregoing, and a great amount of other evidence in
the case, we find von Roques passed down the Barbarossa Juris-
diction Order ; that he personally issued other orders in implemen-
tation of it or pursuant to it that are criminal ; and that he bears
responsibility for the acts of his subordinate units acting under
such orders, and for the acts of other agencies acting within his
area, which were criminal and which they were able to carry out
only with his acquiescence and approval.

5. Hostages and reprisals — We have commented generally on
the fact that the so-called hostage and reprisal orders and killings
in this case are not such in fact but merely terror threats and
killings.

Von Roques received an order from Army Group South on
1 October 1941, which he saw because he initialed it, which
directed [ NOKW-1599 , Pi-os. Ex. 613 ] :

“1. Arresting hostages and all men not residing in any vil-
lages near the railway line Kazatin-Fastov-Smela-Dneprope-
trovsk, possibly also near the line Aleksandriya-Dnepropetrovsk.

“2. Hanging hostages at the railway tracks in case of new
acts of sabotage.

“3. In case of further acts of sabotage, complete evacuation
of a strip 1-2 km. wide on either side of the railway line and
firing on every civilian approaching the railway tracks.”

He immediately sent it on to his subordinate Feldkommandan-
turen.

We do not find from the evidence that hostages were shot in
von Roques’ area. He says they were not.

6. Ill-treatment and persecution of the civilian population —
Many of the documents heretofore set forth show ill-treatment
and persecution of the civilians in von Roques’ area of command.
Other documents show the establishment of ghettos for the Jews ;
requirements that they wear the Star of David; prohibition of
Jewish rites; confiscation of Jewish ritual articles; requirements
that Jews surrender all foreign exchange securities, precious
metals, and precious stones; terror killings of suspect partisans
and partisan sympathisers; so-called mopping-up exercises and
turning over of Jews and Communists to the SD; orders by von

Roques himself that the troops shall not participate in “arbitrary
shooting’’ of Jews and the executive measures of the SD; orders
that all headquarters shall help the SD detachments in carrying
out its orders from the Reichsfuehrer SS, other than taking part
in executions; and that “the right to object does not exist for the
subordinated headquarters with regard to measures carried out
by the SD detachments.” Such orders show beyond doubt the
complete subservience of the Wehrmacht in von Roques’ area to
the SD and its full cooperation with the SD program, with knowl-
edge of its debased and criminal character.

7. Partisan warfare — With respect to partisan warfare in the
light of the foregoing documents and orders set forth, we need
only say that the execution of partisan suspects and other civilians
not francs-tireurs was a regular and continued practice in von
Roques’ area.

On the matters herein pointed out, and the record in the case,
we find the defendant von Roques guilty on counts two and three
of the indictment.

Presiding Judge Young: Judge Harding will continue with the
further reading of the judgment.

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HERMANN REINECKE

Judge Harding: Hermann Reinecke was born in Wittenberg
on 14 February 1888. He was a career officer in the German Army
and served in the First World War as a captain in an infantry
regiment. After the end of the war, he held various positions
until 1938 when he was appointed chief of the newly activated
office group, General Wehrmacht Affairs (AWA). In 1939, this
group was renamed General Wehrmacht Office (AWA) and Rein-
ecke became office chief which position he retained until the end
of the war. He was promoted to brigadier general in 1938; to
major general in 1940 ; and to lieutenant general of the Infantxy
in 1942.

In addition to his duties as Chief of AWA, in December 1943
by a Fuehrer order, he was appointed Chief of the National Social-
ist Guidance Staff of the OKW.

He received the Golden Party Badge in January 1943, and the
Hitler Youth Honor Insignia on 30 January 1944. He states in
his affidavit that in 1944, Hitler ordered that bearers of honor
insignia would become automatically Party members so that this
order affected him in the fall of 1944.

Aside from the charge of crimes against peace, heretofore
disposed of in this opinion, we think that charges under counts
two and three of the indictment may be disposed of under the

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following headings: (1) segregation and murder of prisoners of
war; (2) ill-treatment of prisoners of war; (3) The Commando
Order; (4) prohibited labor of prisoners of war; (5) looting;
(6) murder and ill-treatment of civilians. We shall discuss these
charges in serial order.

1. Segregation and murder of prisoners of war — The record
in this case established numerous and far-reaching crimes by the
Third Reich and its leaders committed against prisoners of war.
These concern not only Russian prisoners of war but other Allied
prisoners of war. The evidence in this case establishes the use
of French prisoners of war in the manufacture of arms contrary
to the Geneva Convention which was binding upon Germany as to
French prisoners of war. It is alleged that this was done by
agreement with the ambassador of the Vichy government to
Berlin. There is no evidence of any agreement by the Vichy
government in this case.

This matter was considered in both the case of the United States
against Milch and the case of the United States against Krupp,
et al., both of which Tribunals held such use illegal. We are of the
opinion, for substantially the reasons cited in the Krupp Case,
that if any such agreement existed, it was contrary to interna-
tional law. Certainly a conquering power cannot set up and
dominate a puppet government which barters away the rights of
prisoners of war while the nationals of that country under sub-
stantial patriotic leadership are still in the field.

Concerning Russian prisoners of war the evidence establishes
a series of colossal and stupid crimes under the Third Reich.
Hundreds of thousands, millions, were doomed to die through
neglect or were killed by ill-treatment or deliberately executed by
the agencies of the Reich Government in order to exterminate the
so-called bearers of Communist ideology, the “unfit”, Jews, and
others. The record also shows shooting of Russian prisoners of
war who attempted to escape and were recaptured, and the brand-
ing of Russian prisoners of war.

This Tribunal, from the evidence in this case, finds that such
uses of prisoners of war and the treatment of prisoners of war
outlined above constituted international crimes. It now becomes
our duty in this case to determine the connection, if any, of the
defendant Reinecke with such crimes from the evidence before us.

The authority exercised by the OKW over prisoner of war
affairs did not extend to camps within the operational area of the
OKH or to camps of the air force and navy. In these camps the
appointment of personnel and disciplinary power was exercised
by the various services. In the Reich Commissariat the camps
were under the jurisdiction of the armed services commander, a

649

subordinate of the OKW ; also prisoner of war camps within the
Reich and the Government General were under OKW jurisdiction
except as to disciplinary powers which in the Reich were exercised
by the Commander in Chief of the Replacement Army.

The organization of Prisoner of War Affairs in the OKW is
shown by the chart of General Westhoff, Chief of Prisoner of
War Affairs in the OKW. Subsequent to the appointment of
Inspector of Prisoner of War Affairs it is shown by the chart of
General Roettig, Inspector of Prisoner of War Affairs.

The OKW, within the Reich, controlled the appointment of dis-
trict prisoner of war commanders, camp commanders, and other
personnel of the prisoner of war administration and conducted
training courses to prepare such personnel for their tasks although
the actual appointment of this personnel was made by the Army
Personnel Office.

The commanding general of the service commands exercised a
dual function; one, as commander of service commands subordi-
nate to the OKW; and the other as commander of troops sub-
ordinate to the Replacement Army, but his Referent for Prisoner
of War Affairs was the commander of Prisoner of War Affairs in
the service command, who in turn was a superior of the various
camp commanders. The control of the OKW over prisoner of war
camps and their personnel is shown in the document pertaining
to the Meinel affair. It is also shown by the testimony of the
affiant Westrem wherein he states in pertinent part as follows :

“The controls from above (OKW, commanders of the pris-
oners of war, commander of the PW base camps, the competent
battalion commanders, whose company commanders and officers
travelled around at all times) * * *”.

When he testified on the stand, he stated :

“I am of the opinion that the OKW/AWA was the agency
charged with dealing with prisoner of war matters.” [TV. p.
8392 ]

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The defendant was the Chief of the AWA. One of the most
important subsections of this office was that of Prisoner of War
Affairs, and the evidence establishes the general control and re-
sponsibility of the defendant over these matters within the Reich,
the Government General, the Reich Commissariat, and other areas
under the OKW.

On or about July 1943, the general inspector of Prisoner of
War Affairs was appointed and was directly subordinate to Keitel
and not to the defendent. Notwithstanding this fact, the testi-
mony of Adolf Westhoff, Chief, Prisoner of War Affairs in the
OKW, shows that this general inspector reported concerning con-
ditions of prisoner of war affairs to the Chief of Prisoner of War

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Affairs under the defendant. It also appears from the evidence
that there were other officers who acted as inspectors of prisoner
of war camps for the AWA and who reported directly to the Chief
of Prisoner of War Affairs under the defendant Reinecke.

This organization of prisoner of war matters remained in effect
until Himmler became Commander in Chief of the Replacement
army sometime in September of 1944, but apparently the change
in prisoner of war matters did not take place until October of
that year. After this period a great many of the important func-
tions regarding prisoner of war affairs were transferred from
the AWA organization to Berger who operated directly under
Himmler. The situation after this change is shown by a chart of
Colonel Fritz Meurer, former chief of staff under Berger.

Concerning prisoners of war in the camps under his jurisdic-
tion, the defendant Reinecke issued many directives. Whether
or not these instructions were designated as “directives”, such
“directives” issued by the OKW were orders and binding upon
subordinate units to whom they were directed. This is shown by
the testimony of many witnesses, including that of General Wes-
tram, former commander of prisoners of war in Wehrkreis XII,
General Schemmel, former district commander of prisoners of
war, Wehrkreis XIII, General Westhoff, and numerous other wit-
nesses, both of the prosecution and defense. The testimony of the
defendant himself also shows that his directives were considered
by him as orders binding upon the units to whom they were
directed.

We are not concerned in this case with the fact that the defend-
ant did not have direct command authority or disciplinary author-
ity over the personnel of camps or units of the army. He issued
the over-all directives in the name of the OKW and the Commander
in Chief of the OKW, with which they were compelled to comply.
The evidence in this case shows that the defendant exercised direct
authority over Wehrkreis XIII. That he by-passed the chain of
command as stated in the testimony of General Schemmel is
immaterial.

The defendant contends that such directives were always issued
“by order” of his superior, Keitel, and in this respect the evidence
on the whole bears out his contention but that fact does not
absolve the defendant for responsibility in connection with such
directives. The Chief of the AWA was not a stenographer who
merely transcribed the orders of his superior and passed them
on. Keitel undoubtedly had a secretary who performed that
function.

The record in this case contains page after page of voluminous
orders transmitted over the signature of the defendant by order

893964—51 43

651

of Keitel. The fact is that it was one of the defendant’s major
functions to draft and prepare orders for submission to Keitel
for his approval (or sign in his name orders in conformity with
his known policies). That this procedure was followed is shown
by the testimony of General Westhoff, reproduced on page 55 of
the defendant’s brief, where he stated [ Tr . p. 7 7 AO] :

“I wrote out a draft decree in accordance with the Geneva
Convention and sent this draft to General Reinecke. General
Reinecke sent back this draft decree to me after he had made
a few improvements in it; he turned sentences around, etc.,
and then he ordered me to send the draft to the various min-
isters for checking purposes.”

and where he states further :

“Then the draft had to be submitted to the Party Chancellery.
The Party Chancellery thereupon announced that the draft in
no way corresponded with their demands; that it must be
altered, and the Party Chancellery then altered about 70 percent
of this draft themselves. This new draft I then received back
again by the AW A with the order to submit the decree in its
form as it was then, and to submit it for signature/'

The statement of the witness Kattner, secretary to the defend-
ant Reinecke, also cited in the defendant's brief, states [Tr. p.
8361 ] :

“As a matter of principle, these things were like this: the
draft of such an order would be prepared in the Prisoner of
War Department ; would then be submitted to the Field Marshal
and be initialed by him and he would also put a date thereon.
Then this draft was returned to us and was copied out and
signed by General Reinecke, T.A. — Im Auftrage — by order
of'."

In other words, her testimony was to the effect that the drafts
of these orders were prepared by the subordinates of General
Reinecke before they were submitted to Field Marshal Keitel for
his signature or approval. It is not even to be presumed accord-
ing to normal staff procedure that where the ideas expressed in
the order carried out a policy of Keitel known to the defendant,
that Keitel saw and approved such orders before they were issued.
It is to be noted in this connection that while the office of the AWA
was located in Berlin, Keitel undoubtedly remained constantly
with Hitler’s headquarters in the East. Many of the directives
signed by the defendant do not bear Keitel's initials or signature,
showing they were seen and approved by him as is the usual
procedure where such is the fact. In fact, [Prosecution] Exhibits

652

366, 411, 371, 1248, 363, 210, and 232 show neither Keitel’s initials
nor his signature.

These matters have been heretofore discussed in this opinion
and the defendant in this case cannot escape responsibility for
decrees issued under his signature merely by the fact that they
were issued “by order”. The defendant, in his own testimony,
concedes that many of the ideas therein contained were his own
but these, according to his contention, were always the beneficial
provisions ; a contention with which this Tribunal is not impressed
in view of all the evidence.

It is alleged by the defendant that he could visit prisoner of
war camps only with the permission of the commander in chief
of the replacement army. This defense is considered without
merit. Whether he and his subordinates formally obtained such
permission is immaterial. If such a requirement existed, it was
a mere formality.

The defendant’s supervision and control of prisoners of war
and prisoner of war affairs is also shown by the testimony of
General von Westrem, who stated [TV. pp. 8892-93 ] :

“I am of the opinion that the OKW/AWA was the agency
charged with dealing with prisoner of war matters.”

He further stated :

“Yes, AWA, that is, the department for prisoners of war, did
use extensively its right to control the prisoners of war and
the work in their camps. That was done in the first place by
General Reinecke himself, who visited me twice, then by the
inspector of prisoner of war matters who, in behalf of the
AWA, was constantly travelling. It was also done by individual
officers on the staff of the AWA who, by surprise, came to visit
labor detachments and prisoner of war enclosures.”

The evidence establishes that he made inspections himself and
that the camps were constantly being inspected by his subordinates.
Inspection of such camps and knowledge as to what occurred
within them was a function of the defendant. Westhoff testified
that the Inspector of Prisoner of War Affairs was subordinate
to the AWA and could inspect camps within the jurisdiction of
the AWA.

A Reinecke exhibit, an affidavit by Rudolf Schleier, shows that
the right to inspect was vested in the defendant.

This Tribunal is not concerned with fine formalities or divi-
sions of authority. The evidence establishes overwhelmingly the
over-all control and supervision of the defendant Reinecke as to
prisoners of war under the supreme authority of the OKW and

653

his power over prisoner of war camps and prisoner of war affairs.
The evidence shows that he exercised that authority by issuing
orders; that he had the right of inspection both in himself and
his subordinate ; that such inspection was a duty entrusted to him
and carried out by him ; that he had the sources of knowledge and
the duty was placed upon him to know and supervise what took
place in these camps, and that he did know and supervise what
took place therein and directed certain operations in such camps.

As heretofore stated, it is established that prisoners of war
were segregated and liquidated under the program of the Third
Reich. The process of segregation and the resultant executions
have been shown to have been carried out primarily by the SIPO
and SD units sent to the camps.

The defendant has denied knowledge of this segregation and
liquidation program of prisoners of war under his jurisdiction.
The knowledge of the defendant, his approval, and cooperation
with this program of murder carried out by Himmler and his
police, particularly by the SIPO and SD is established from
evidence too voluminous to recite in detail in this opinion. Broadly
speaking, however, the sources of evidence may be classified under
various headings; first, the directives and reports of the SIPO
and SD through their own channels in which they refer to agree-
ments with the OKW as to their operations. These documents,
it is true, did not go through military channels, nor were the spe-
cific agreements with the OKW set forth, and some of the agree-
ments referred to are antecedent to documents introduced in evi-
dence which show the official action of the AW A and OKW in
regard to operations of the SIPO and SD in prisoner of war
camps. However, that such agreements did in fact exist is not
only shown by these SIPO and SD documents, but from the fact
that in view of the responsibility of the OKW and AWA over
prisoner of war affairs and prisoner of war camps, the activities
of the SIPO and SD could not have taken place without the assent
of the OKW and AWA.

Most certainly this segregation and liquidation program was
known to the commanders of the various camps where the segre-
gation took place and to various other military officials within
these camps. The evidence in this case discloses not only that
it was the duty of the defendant to know what took place within
them but that in fact from constant inspections by his subordi-
nates and which he made himself, he could not have escaped such
knowledge.

Not only did he have this power and duty of inspecting but it is
also established by the evidence that at conferences which he called
for the camp commanders, he was in contact with personnel who

654

knew very well what was taking place within their camps as to
segregation and liquidation.

Another source of evidence which the defendant had as to this
program was the various conferences which he is shown to
have had with SS Obergruppenfuehrer Mueller who represented
Himmler and the RSHA in carrying out this liquidation program.
The witness, Otto Braeutigam, liaison officer between the Ost-
ministerium and the Wehrmacht Operations Staff, has testified to
one such conference between Reinecke and Mueller where the
liquidation of prisoners of war was openly discussed. He testified
that he took to the conference the orders of the SIPO and SD
pertaining to this matter and that these orders were brought to
the attention of the defendant. Certain conference notes of Minis-
terial Councillor Dr. Letsch show discussions of liquidation of
prisoners of war who had been segregated for that purpose.
Another conference between Reinecke and SS Obergruppenfuehrer
Mueller and others was attended by Erwin Lahousen, Chief of
Counterintelligence, Department II, as the representative of Ad-
miral Canaris sent to protest against this program, and the wit-
ness, Lahousen, testified that not only was the matter discussed
but that the defendant signified his approval of the program of
Mueller as to segregation and liquidation of prisoners of war.

The defendant denies any such conference but the evidence,
including that of his own witnesses, supports the testimony of
Lahousen.

A final and most convincing source of evidence on this point is
found in the documents signed by the defendant himself. [Doc.
No.-3417, Pros.] Exhibit 363 shows an order of the OKW, dated
8 September 1941, distributed “by order” over the signature of
Reinecke, providing for cooperation of the camp authorities with
the SIPO and SD.

[Document 695-PS, Pros.] Exhibit 411, dated 24 March 1942,
over Reinecke’s signature shows the segregation program of the
Einsatzgruppen and the cooperation prescribed for camp com-
manders with the SIPO and SD.

A decree of 5 May 1942, signed by Reinecke, shows an agree-
ment by him and the Reich Leader SS in connection with segre-
gation and refers to the “eliminations”. This agreement was in-
tended to avoid a double screening and provided that thereafter
the screening would be east of the old Reich frontier.

Another decree signed by Reinecke is dated June 1942. This
decree is termed “Policy regarding Commissars and Politruks”
and provided for the “elimination” of commissars and Politruks
while within the Government General. It further provided :

655

“Within the Government General, the elimination shall be
carried out as before by the Security Police according to direc-
tives given by ordinance Az. 2 f 24.73 AW A/Prisoners of War
Gen. (Ia) No. 389/42 g, dated 24 March 1942. Those sought out
by the SD commissioners shall in future be conveyed to Security
Police camps specially prepared for this purpose in the Gov-
ernment General or in the Reich and remain in custody there.
Special treatment, as hitherto, will no longer be given, unless
people are involved who have been convicted of criminal acts
such as murder, cannibalism, and similar acts.

“To accelerate the proceedings, the Security Police shall re-
inforce their Einsatzkommandos in the Government General.”

This shows the use of the term “special treatment”, and
that that term clearly meant liquidation. Furthermore, the testi-
mony of many witnesses, including the defendant himself, estab-
lished beyond a reasonable doubt that the defendant knew, partici-
pated in, and approved the segregation and liquidation program
carried out by the SIPO and SD as to prisoners of war under his
jurisdiction and the evidence in this case establishes that that
segregation and liquidation were not confined to political commis-
sars but included many other classifications among the prisoners
of war, including the Jews. The evidence also establishes that
those sick and unable to work, prisoners of war who had escaped
and had been recaptured, and prisoners of war of Polish and
certain other nationalities who had had sexual intercourse with
German women, were turned over to the Gestapo, SIPO, and SD,
and the defendant’s connection therewith.

This Tribunal does not propose to enter into the question of how
these liquidations were carried out or their precise number. Nor
is it concerned with the fact that the program of the SIPO and
SD was not entirely coextensive with the jurisdiction of the de-
fendant. It is shown that it was carried out in camps under his
jurisdiction by virtue of directives issued by him. Whether the
unfortunates who were segregated were transported to concen-
tration camps to be gassed or worked to death or otherwise dis-
posed of, as described so graphically by the witness, Smolen, for-
merly with the political reception detachment at Auschwitz, and
the question of whether or not their deaths were reported to the
Wehrmacht Information Center, WASt, an office under the AWA,
as he also testified or whether as described by the witness, Ohler,
former inspector of the Nuernberg Gestapo, they were transported
to the railroad station by the camp authorities, chained, and taken
into Dachau where, five at a time, they were taken out, stripped of
their clothing, and shot by the Einsatzkommando, is not the ques-

656

tion. The fact remains and is clearly proved that the defendant was
an active participant in the program of segregation and illegal liqui-
dation of prisoners of war under his jurisdiction; that he knew
prisoners of war turned over to the police agencies were to be so
eliminated; and that he arranged for turning them over to such
units for that purpose.

Nor are we concerned with the fact that having participated in
the ruthless policies of the Reich in the early stages of the war
with Russia with regard to Russian prisoners of war, ultimately
the leaders of the Reich came to the conclusion that they were
depriving themselves of a valuable source of manpower and there-
after relaxed in a measure their program of extermination. This
is a relaxation for which the defendant or anyone else can claim
little credit at best, and according to the defendant’s testimony,
he can claim no credit because he asserts that he never knew of
the existence of any extermination program in the first place.

For the reasons above stated, we find the defendant guilty of
participation in the criminal segregation of prisoners of war for
liquidation of certain elements and for turning others over to the
Gestapo for confinement in concentration camps or elimination as
they saw fit.

2. Ill-treatment of -prisoners of war — The record in this case
shows various inflammatory orders concerning prisoners of war
issued by the defendant and his subordinates. These include
[Doc. 888-PS, Pros.] Exhibit 1248 and [Doc. NOKW-035, Pros.]
Exhibit 336.

On 24 March 1942, the OKW/AWA issued an order which the
defendant claims favorably modified preexisting directives. How-
ever, the purpose of this order was apparently to increase the
production of prisoners of war. This order contains the following
provisions :

“Ruthless and energetic action in cases of uncooperativeness,
refusal to work, and negligence in work, especially toward Bol-
shevist agitators, is to be ordered; insubordination or active
resistance must be completely removed immediately with a
weapon (bayonet, gun butt, or firearms, no sticks) .”

This order directed ruthless and energetic action for “unco-
operativeness”, “refusal to work”, “negligence in work”, espe-
cially “toward Bolshevist agitators”. This directive also provided :

“The decree concerning use of arms by the armed forces is
to be interpreted strictly. Whoever does not use his weapon
or does not use it energetically enough in seeing that an order
is carried out is liable to punishment.”

On 19 August 1942, Reinecke signed a decree. This order was
distributed by the Plenipotentiary for the Four Year Plan and
the Plenipotentiary General for Labor Allocation. This order
states :

“During these visits it should be mentioned that a further
OKW decree pertaining to the treatment of Russian PW’s in
case of refusal to work will follow soon. Furthermore, inquiries
are to be made if and where it has become known that guards
have neglected their duty in supervising the work output of
PW’s. In case this is ascertained, the most drastic steps are
to be taken.

“For 10 September 1942, reports will be submitted to the
OKW confirming that all NSDAP functionaries (Hoheitstrae-
ger), in whose districts (Eezirke) PW’s have been allocated to
work, have received the decree referred to, and where discip-
linary action has been taken against guards who have neglected
their duty.”

This order shows party interference and influence upon the
defendant in connection with his treatment of prisoners of war
and also directs vigorous measures in case of refusal to work and
to increase the work output of prisoners of war.

On 29 January 1943, von Graevenitz, a subordinate of Reinecke,
signed and distributed an order extending the power to inflict
punishments upon prisoners of war for attacks upon the State.
This order was distributed by the Party Chancellery to various
Gauleiters.

On 17 August 1944, an OKW decree, signed by Reinecke, con-
cerning the treatment of prisoners of war, again shows the party
influence upon the defendant in regard to this matter. Pertinent
parts of this order read as follows :

“* * *. The prisoners of war must definitely know at all times
that they will be ruthlessly proceeded against, if necessary with
weapons, if they slack in their work, offer passive resistance, or
even rebel * * *.”

Paragraph 5 provides —

“* * *. Minor offenses by the guard and auxiliary guard per-
sonnel in the treatment of prisoners of war are not to be prose-
cuted if they serve to help increase production * * *.”
Paragraph 6 provides as follows :

“* * *. g Uar( j an( j auxiliary guard personnel must there-
fore be briefed on political views as often as possible. The com-
manders of prisoners of war in the Wehrkreis are responsible
that official NS political officers are speedily assigned to all
men’s prisoner camps * *

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658

This paragraph clearly establishes that the ruthless policy of
the Party as to treatment of prisoners of war in work production
was put into effect by the defendant Reinecke.

In addition to assisting in the liquidation by the SIPO, SD, and
Gestapo of “undesirable elements” among prisoners of war, the
exhibit above cited discloses that the defendant directed that the
remaining prisoners were to work under the merciless lash of
the Party. For such inhuman orders and abandonment of pris-
oners of war under his jurisdiction to the supervision of a ruth-
less civilian agency, of whose nature and purposes he was advised
and which he claims to have resisted, the defendant Reinecke is
criminally responsible.

It is small wonder from the above cited directives that Gen-
eral Schemmel testified to the effect that the mortality rate of
Russian prisoners of war engaged in heavy labor at Nuernberg
was very high.

3. The Commando Order — The evidence in this case is not
considered to establish beyond a reasonable doubt the defendant's
connection with the execution of the Commando Order.

A. Prohibited labor of prisoners of war — The witness, Henri
Bousson, former French prisoner of war in Wehrkreis VI, estab-
lishes the illegal use of French prisoners of war within Reinecke's
jurisdiction in the manufacture of artillery weapons in the Krupp
plants.

It is also established by Westhoff's testimony that he called the
use of French prisoners of war in armament work to the attention
of Reinecke and advised him that it was contrary to the Geneva
Conventions, to which Reinecke replied that an agreement had
been reached with Ambassador Scapini and the French Govern-
ment permitting such use.

This and other evidence in this case clearly establishes the
illegal use of French prisoners of war in the manufacture of arms
and munitions and the defendant's knowledge thereof. That Rein-
ecke was responsible for this use of prisoners of war is shown
from the record which, as heretofore pointed out, establishes
authority and jurisdiction over prisoners of war within the
Reich. Reinecke's control over such prisoners of war is also
shown by [Doc. NOKW-180, Pros.] Exhibit 280, wherein Goering
on 4 November 1943, stated :

“* * *. The Italians (Italian military internees) get beaten up
when they do not work. If Reinecke cannot do the work, I shall
dismiss him and get somebody else. * * *”

And by a meeting of the Central Planning Board wherein Field

659

Marshal Milch stated:

“Gablenz, I want you to get in touch with Reinecke concern-
ing these French. I demand that if the people refuse to work
they immediately be placed against the wall and shot before all
the other workers. * *

While the proof in this case establishes many uses of Russian
prisoners of war and while it establishes that they were used to
replace French prisoners of war for use in the armament industry,
it fails to establish the actual use of Russian prisoners of war in
the manufacture of arms and munitions.

5. Looting — On 17 September 1940, Keitel issued an order to
the military commander in occupied France providing for the
illegal seizure of property and its transfer to the Reich. This
order in pertinent part reads as follows [ 138-PS , Pros . Ex . 5J>7] :

“Reichsleiter Rosenberg and/or his deputy Reichshaupt-
stellenleiter Ebert has received clear instructions from the
Fuehrer personally governing the right of seizure ; he is entitled
to transport to Germany cultural goods which appear valuable
to him and to safeguard them there. The Fuehrer has reserved
for himself the decision as to their use.

“It is requested that the services in question be informed
correspondingly. ,,

On 10 October 1940, Reinecke wrote to the Supreme Commander
in France and requested that the directions given in the above
directive of Keitel’s be transmitted to the military administration
in Belgium.

On 30 October, he addressed a communication to the Armed
Forces Commander in the Netherlands, supplementing this order
of Keitel’s, a copy of which he sent for information to Reichsleiter
Rosenberg.

For his connection with this looting program of the Third Reich,
he is considered criminally responsible.

6 . Murder and ill-treatment of civilians . — We do not feel that
the proof in this case establishes beyond a reasonable doubt the
criminal participation of the defendant in the screening and
turning over of civilians to the SIPO and SD, or that he in
fact had authority over civilians.

There has been much discussion in this case concerning the
defendant’s assignment as Chief of the National Socialist Guidance
Staff of the OKW for the purpose of fostering the Nazification
of the various services, particularly of the army. But the fact
remains that the indoctrination of the army in the Nazi ideology,
repulsive as that ideology might have been, does not in itself con-

660

stitute an international crime, and the fact that he was appointed
and carried out such functions is not considered to have any signifi-
cance in this case other than as it indicates his conformity to
the ideals of Hitler and Keitel whose orders and directives he is
shown to have formulated and transmitted, and his relation to
Bormann and the Party to whom he, in a measure, surrendered
the supervision and treatment of prisoners of war.

It has also been established that he was a member of the
People’s Court as one of the lay judges thereon and that he sat
in the trial of the conspirators of 20 July 1944, where the con-
temptible Freisler presided, which is perhaps the most infamous
travesty on human justice ever so completely recorded in the
annals of man.

The fact, however, that he was a member of the People’s Court
and sat in this trial does not constitute an international crime
and is of no significance in this case other than it reflects his
character as a trusted and supine instrument of Hitler’s will in
any capacity

For the reasons above stated in this judgment, we find the
defendant guilty under counts two and three of the indictment.

Presiding Judge Young: I shall continue with the reading of
the judgment.

WALTER WARLIMONT

Walter Warlimont was born on 3 October 1894. He saw service
in World War I in the artillery as a combat officer. At the end
of 1920, upon his own application, he was taken into the Reichs-
wehr. From then on he served in various capacities and in
1929 was detailed to the United States Army to study the economic
mobilization system. Later on he served in various capacities,
and in April 1933 was transferred to the Reichswehr Ministry in
Berlin, Army Armament Office, as group chief in the economic
department. In the summer of 1934, he was appointed chief of
this department. At the end of August 1936, he was sent by the
Reich Minister of War, von Blomberg, as Military Plenipotentiary
to Generalissimo Franco in Spain, where he remained until No-
vember 1936.

In October 1937, he was given command of an artillery regi-
ment and in 1938, shortly after the Anschluss, he was ordered to
Vienna by Keitel, Chief of the OKW, to represent the OKW there.
After a few weeks he returned to his regiment. On 1 August
1938, he was transferred to the OKW in Berlin to become familiar
with the position of chief of the section of national defense as a
successor to Jodi. At that time his chief task was to represent the

661

OKW in ensuing conferences where the military occupation of the
Sudetenland was being arranged with the military representatives
of Czechoslovakia and the signatory powers of the Munich
agreement.

On 10 November 1938, he was appointed Chief of the Section of
National Defense and was at the same time charged with the
affairs of the Chief of the Wehrmaeht Operations Office, which
shortly before had been activated. In August 1939, Jodi returned
to the OKW and took over the affairs of the Chief of the Wehr-
macht Operations Office and the defendant remained Chief of the
Section for National Defense. On 1 August 1940, he was promoted
to brigadier general. The first of January 1942, the Office Chief
of National Defense was renamed Deputy Chief of the WFSt with-
out incurring any changes in its duties. On 1 April 1942, he was
promoted to major general. On 1 April 1944, he was promoted
to lieutenant general of artillery. The Department of National
Defense consisted of the following divisions :

A. Operations Section Army (OPH (I/H) ).

Operations Section Air Force (OPL (I/L) ).

Operations Section Navy (OPM (I/M) ).

B. Quartermaster Section (Qu.).

C. Organization Section (Org.).

When in January 1942, these sections were directly incorporated
into the WFSt, under Warlimont, Jodi explained Warlimont’s
duties as follows :

“Warlimont’s principal activity was to assign the entire work
of the staff and to issue directives for that work. He supervised
everything. He received orders from me concerning his work,
discussed it with the general staff officers, examined the drafts,
signed, and sent them to me.

“Another special activity was his direct cooperation with
Field Marshal Keitel, concerning all the questions which I did
not handle, problems which did not concern me. I concentrated
almost exclusively on operational problems. Warlimont han-
dled, without my participation, any other administrative ques-
tions in the occupied territories, any economic questions, in
short, all questions which were not of an operational nature,
which had to be sent in the form of orders by Keitel to the
other offices.

“As to operational questions, he prepared and submitted them
to me. As to others, he cooperated independently with Keitel,
who had no staff of his own at headquarters, without my par-
ticipation, particularly as he was better trained in fact for these

662

matters (political and economic questions), than for the opera-
tional ones.”

Warlimont is charged under all four counts of the indictment.
Since counts one and four have been eliminated by the action
of the Tribunal, the remaining charges under counts two and
three may be summarized as charging the criminal connection of
the defendant with the following subjects: (1) The Commissar
Order; (2) The Commando Order; (3) prohibited labor of pris-
oners of war; (4) murder and ill-treatment of enemy bellige-
rents and prisoners of war; (5) deportation and enslavement of
the civilian population; (6) plunder of public and private prop-
erty and wanton destruction; (7) murder, ill-treatment and perse-
cution of civilian population, in which he is charged with (a)
criminal connection with the Barbarossa Order, (b) illegal exe-
cutions of the civilian population, (c) discrimination, persecution,
and execution of Jews by the Wehrmacht and cooperation with
Einsatzgruppen and SD, (d) cooperation with the Einsatz-
gruppen of the Rosenberg Staff, ( e ) reprisals against families
of French officers, (/) The Night and Fog Decree, and ( g ) other
illegal orders. These we will take up in serial order.

1. The Commissar Order — Prior to the Russian campaign,
Hitler had announced at a conference of high officers and their
military commanders and their chiefs of staff his intention to
wage war on Russia, which would be a clash between two ideolo-
gies . It would be necessary to fight a war of extermination; it
would be necessary to forget the comradeship between soldiers.

Subsequently, on 6 May 1941, General Mueller of the OKH sent
a letter to the Chief of the OKW, marked attention Warlimont or
his deputy, inclosing a draft of the directives for the treatment of
political functionaries. This draft was the first pertaining to
the so-called Commissar Order. Warlimont sent this to the de-
fendant Lehmann, who, after a telephone conversation with Warli-
mont on 8 May, returned an amended draft after having crossed
out paragraph III and suggested the following words be sub-
stituted as a new paragraph III [1 471 -PS, Pros. Ex. 54] :

“The courts martial and the drumhead courts martial of the
regimental and other commanders must not be charged with the
execution of the measures indicated under I and III.”

The note of transmittal is signed by Lehmann. On 12 May,
Warlimont submitted a memorandum concerning this matter to
Jodi, which shows the OKH draft as altered by Lehmann. This
reads as follows [884-PS, Pros. Ex. 55 ] :

663

“J * * *

“1. Political functionaries and commissars are to be removed.

“2. Insofar as they have been captured by troops, an officer
with disciplinary power shall have a final decision as to whether
the prisoner in question is to be removed or not. It is sufficient
to determine whether the prisoner is a political functionary.

“3. Political commissars among troops shall not he recognized
as PW’s and shall be liquidated [erledigen] at the latest in the
transit PW camps. No evacuation to the rear.

“4. Expert directors of economic or technical enterprises
shall be seized only if they offer resistance to the German armed
forces.

“5. The carrying out of military operations must not be hin-
dered by these measures. Planned searching and purging
actions are not contemplated.

“6. In the army rear area, functionaries and commissars,
with the exception of political leaders among the troops, shall
be turned over to the Special Commitment Squads (Einsatz-
kommandos) of the SD.

“II. On the other hand, memorandum No. 3 of Reichsleiter
Rosenberg provides that only high and highest functionaries
shall be liquidated, since functionaries on the state communal
and economic level are indispensable for the administration of
the occupied territory.”

This memorandum was signed by Warlimont. Warlimont in his
affidavit of 14 November 1945 states as follows [2884-PS, Pros.
Ex. 113 ] :

“I recognize a document entitled ‘Directives Regarding Treat-
ment of Authorized Political Representatives of the Russian
State for the Uniform Execution of the Mission Received on
31 March 1941’, which is an excerpt from a proposed directive
drafted by the OKH and dated 12 May 1941 ( 88U-PS , Pros.
Ex. 55). That document is a true and accurate statement of
the proposals made by the OKH with respect to Soviet political
functionaries and military commissars captured with Soviet
troops. That document states that political functionaries and
commissars among the Soviet prisoners of war are to be elim-
inated. That document bears my initials [signature] indicating
that it had been sent to my division in the OKW and had been seen
by me before submitting it to General Jodi, my immediate
superior. I added to the document parts II and III before
submitting it to General Jodi. In addition, on my own initia-
tive, I sent a copy of the document to the OKW Legal Depart-
ment for information, expecting that department to examine

664

the entire question and to render an opinion thereon to the
Chief of the OKW.”

On 6 June 1941, [NOKW-484, Pros. Ex. 56 ] the so-called Com-
missar Order was distributed to the OKH, OKL, and the OKM, and
certain offices, with the request that it be distributed down only
to the arm and air fleet commanders and that the other chiefs and
commanders be informed by word of mouth. The cover letter is
signed by the defendant. On 8 June, this order was distributed by
von Brauchitsch with certain additional clauses, which read as
follows [N OKW -107 6, Pros. Ex. 57 ] :

“To I number 1 —

“Action taken against a political commissar must be based
on the fact that the person in question has shown by a special
recognizable act or attitude that he opposes or will in future
oppose the Wehrmacht.

“To I number 2 —

“Political commissars attached to the troops should be segre-
gated and dealt with by order of an officer, inconspicuously and
outside the proper battle zone.”

The idea for the murder of prisoners of war in the name of
ideological warfare did not originate with Warlimont. However,
the evidence establishes that he contributed his part to moulding
it into its final form. It was distributed “by order” under his
signature. There is nothing to indicate that those contributions
which he made in any way softened its harshness, and we find
the defendant guilty of a participating part in the formulation of
this criminal order.

2. The Commando Order — On 7 October 1942, Hitler made a
radio speech in which it was stated :

“All terror and sabotage troops of the British and their
accomplices, who do not act like soldiers but like bandits, have,
in future, to be treated as such by the German troops, and they
must be slaughtered ruthlessly in combat wherever they
turn up.”

On 8 October the defendant Warlimont apparently was in-
structed by Jodi to put the announcement in the form of a military
order. The defendant alleges he was given detailed instructions
with regard to the contents of the order. On 8 October, von
Tippelskirch, a subordinate of the defendant and Chief of
WFSt/Qu (IV), issued a memorandum in which, after referring
to the above radio announcement by Hitler, it was stated in para-
graph II :

“Supplementary thereto, the Deputy Chief (WFSt) Armed

665

Forces Operations Staff issues the following order to section Qu,
which is to be carried out speedily :

“1. Transposition into order form.

“2. Similar to the Barbarossa Order given previously, this
order too, must — in accordance with WR and counterintelligence
— be very carefully considered and worded. Distribution only
as far as the armies, from there only orally. To be destroyed
after reading.

“3. With regard to the contents of the order, the following
must be considered :

“In those cases in which temporary arrest of persons takes
place in our interest, they must be handed over through the
counterintelligence to the SD, after intensive interrogation at
which SD, too, must participate.

“Under no circumstances confinement in prisoner of war
camps. Proceedings on the lines of this order are later on to be
taken against the people from Norway.”

This memorandum also refers to a telephone call to Ministerial-
rat Dr. Huelle, a subordinate of Lehmann (in WR), concerning
which the following entries were made :

“Members of terror and sabotage troops of the fighting forces
of Great Britain, who can be proved to have disregarded the
rules of honorable combat, are to be treated as bandits.

“They must be ruthlessly eliminated in combat or in flight.

“If military interests necessitate their temporary arrest or
if they fall into German hands outside combat activities, they
must be taken to an officer for immediate interrogation, and
afterwards be handed over to the SD.

“Custody in prisoner of war camps is forbidden.

* * *

“He remarks further that the formulation could only be based
on the facts as they appear in the press.”

The significant part of this memorandum is contained in para-
graph 2 which contains the order of the defendant as to this
matter and which suggests certain procedure to be followed and
certain provisions that must be considered in drafting the order.
The defendant's contention that he received detailed instructions
as to what the order was to contain is not borne out by the wording
of these instructions. In the first place, with regard to the con-
tents of the order, he states that “the following must be consid-
ered”, which is not consistent with the contention that he had
detailed instructions from Jodi. Nor is the substance of the order
which he issued to section Qu. consistent with such contention.

666

The defendant has also introduced a rather elaborate and un-
convincing defense to the effect that it was his intention to sabo-
tage the order, first by conferences with counterintelligence and
the legal section of the OKW, and secondly to sabotage it by hav-
ing counterintelligence examine the persons captured, on the
theory that counterintelligence under Canaris would see to it that
they were not executed.

In connection with the first defense, it is to be pointed out that
the instruction of the defendant was to the effect that the order
must be prepared speedily. As to the second defense, the order
of the defendant states that the following must be considered :

“In those cases in which temporary arrest of persons takes
place in our interest, they must be handed over through the
counterintelligence to the SD, after intensive interrogation at
which SD, too, must participate.”

By 8 October 1942, intensive interrogation had certainly come
to have a sinister significance, particularly when carried out by
the SD, which was to participate in such interrogations, and it is
difficult to understand how the action of counterintelligence was
to sabotage the order if the SD was to be present. Examination
of this document can lead to but one conclusion; that it does not
bear out the contention of the defendant of any intention on his
part to sabotage the order; and it further bears out the fact that
these provisions which were to be considered came from the
defendant himself and not from Jodi and certainly not from the
radio speech of Hitler, for these matters go beyond the radio
speech.

In the light of these instructions of the defendant, it is signifi-
cant that the order itself as finally issued contains the following:

“4. If individual members of such commandos, such as
agents, saboteurs, etc., fall into the hands of the military forces
by some other means, through the police in occupied territories
for instance, they are to be handed over immediately to the
SD. Any imprisonment under military guard, in PW stockades
for instance, etc., is strictly prohibited, even if this is only
intended for a short time.”

Prior to the completed order, which it is noted was issued on
18 October 1942, only 10 days after the matter was submitted
to the defendant, other proceedings were had with reference to
the preparation of this order. On 9 October 1942, a teletype was
sent to the Office Foreign Counterintelligence, inclosing a draft
prepared by WR. This teletype was signed “by order” Warlimont.
Certainly no time was lost in either the preparation of this draft
by WR or its submission to counterintelligence.

893964 — 51 44

667

This teletype also states: “A close examination — if necessary
under cooperation of the Reich Leader SS — is requested.”

Surely the suggestion of a conference on this matter with the
Reich Leader SS cannot be assumed as a sabotage measure. The
draft submitted also contains provisions pertaining to the matters
discussed heretofore in relation to [Doc. 498-PS, Pros.] Ex-
hibit 124.

On 10 October a teletype was transmitted to the OKW, WFSt,
stating the objections of the Office Foreign Counterintelligence to
the draft of the order submitted to it; and on 18 October a tele-
type to the OKW/WFSt signed by the Office Foreign Coun-
terintelligence, making changes in its original teletype, was
transmitted.

On 13 October 1942, a telegram, signed Canaris, was trans-
mitted to the Armed Forces Operations Staff [Quartermaster
Section] (Qu) Prisoner of War Affairs (K) relative to this matter
and stating Canaris’ objection to it.

On 14 October 1942, a file note was made by von Tippelskirch
with reference to a telephone conversation with the Chief of the
WR in which WR requests a phone call to the deputy chief of the
[Armed Forces] Operations Staff and suggests a conference per-
taining to the matter.

On 15 October 1942, a letter signed by Lehmann was sent to
the Armed Forces Operations Staff, WFSt, with reference to a
previous telephone conversation and for information to the Office
Foreign Counterintelligence, discussing the subject of the treat-
ment of prisoners of war in connection with the proposed Com-
mando Order.

On 14 and 15 October 1942, various drafts pertaining to the
proposed Commando Order were transmitted, apparently to Jodi.
[Doc. 523-PS, Pros.] Exhibit 123 contains various drafts pre-
pared by WFSt/Qu. dated 14, 15, and 17 October 1942, initialed
by Warlimont. Pertaining to these drafts the statement of Jodi
in his affidavit is quoted as follows :

“In reference to Warlimont’s participation in the drafting,
formulating, amending and execution of Hitler’s ‘Kommando-
befehl’ of 18 October 1942, and to the documents 506-PS, 531-
PS, 1263-PS, and 1279-PS, submitted to me, I declare the
following :

“Every time when the heading is ‘Wehrmachtfuehrungsstab,
Qu.’, it referred to the quartermaster section. In this case, and
as a rule — I say, as a rule, not always — they were matters
which were handled by Warlimont directly with Field Marshal
Keitel. Sometimes I saw one thing or another, but generally

668

not. He participated in such things much more than I did. 1
have worked but little with the quartermaster section. In order
to keep a clear head, I did not bother with all these things.
Therefore, Warlimont has participated to a greater extent, in
all things where it says quartermaster section.

“Of course, I saw many things, but most of them I did not
see. Of course, I have seen everything pertaining to opera-
tional things with which he dealt, except small matters of a
subordinate nature, which he signed himself once in a while,
such as unimportant individual orders about which he may have
called me up before. Important matters were prepared by him,
and then submitted to me.”

This affidavit, while not particularly enlightening as to the
Commando Order, is most enlightening as to the procedure fol-
lowed in such matters, and definitely does not bear out the state-
ment of Warlimont that he received detailed instructions from
Jodi as to what was to be contained in the Commando Order which
he was to draft. The exhibit shows, on page 27 [of original
document], the initials of Warlimont. This was the final form
of the draft which he submitted to Jodi. The remaining drafts
in this exhibit were apparently prepared by Jodi himself. It is
noted in this draft (paragraph 2) that the words “no matter
whether as soldiers and/or in what uniform” are contained.

[Document 1263-PS, Pros.] Exhibit 122 shows certain changes
in the defendant’s handwriting were made therein. (Tr. pp.
6988-9.) These changes are not without significance. On [tran-
script] page 6993 the defendant claims “the changes in handwrit-
ing which I had to read to you, I did not invent myself but they
had been ordered to me or at least ordered to this effect.” Under
the circumstances, the attempt to shift the responsibility for them,
presumably to Jodi, is not convincing.

It is argued by the defendant Warlimont in his testimony that
since Hitler drew up the final draft of this order himself, that
he had no further connection therewith, and his responsibility
thereto was terminated. The Tribunal does not agree with this
contention. While it appears that Hitler drew up the final order,
he had before him the ideas which had been expressed by the
defendant in various drafts, and part of these were incorporated
in the final order. It is significant that the Hitler order departs
in many ways from the original radio announcement and goes
much further. The ideas of the defendant are considered by the
Tribunal to be a material part of the final product.

The record in this case shows that the Commando Order was
carried out, and British, American, and Norwegian soldiers were
executed under its provisions.

669

On 26 November 1942, the defendant Warlimont, in a note for
personal report, advised Jodi that in the East the Army General
Staff considered the destruction of the written Commando Order
issued below army and staffs of other Wehrmacht branches of
the same level, important in consideration of the situation in the
East. Warlimont, on his own initiative, states in this note, “On
other fronts also there exists the danger of this order falling into
the hands of the enemy.” Pursuant to this note and Jodi’s order,
a teletype was transmitted by the OKW/WFSt Qu., directing that
all copies with the German troops in Africa and Finland were
to be destroyed. A similar text was sent to the Navy, the Army
and the Luftwaffe.

On 13 December 1942, the Armed Forces Commander in Norway
sent a telegram to the OKW/WFSt stating the importance of in-
terrogating captured commandos before shooting them, calling
attention to the protest of the Reich Commissar and the Chief of
the Security Police because this had not been done in the case of
Egersund where commando liquidation had been immediate. The
purpose of interrogations is clearly brought out by this docu-
ment. This teletype was answered by the OKW/WFSt Qu (III),
initialed by Warlimont, to the effect that retaining commandos
for interrogation conformed to the Fuehrer Order of 19 October
1942.

The evidence in this case establishes that WFSt/Qu tried to
assist the foreign office in concealing the nature of the Commando
Order, and that the defendant had knowledge of and participated
in this effort. Other evidence establishes that the defendant ad-
vised the Chief of Prisoner of War Affairs that commandos were
not prisoners of war but criminals and therefore their deaths
should not be reported to the home country. The defense of this
inhuman act on the part of the defendant as found on transcript
pages 7014 and 7015 is not sustained by the record. On 26 Feb-
ruary 1944, the defendant prepared and sent a telegram to the
Commander in Chief Southeast, la, with reference to landings of
English commandos on the islands of Patmos and Piscopi, which
reads as follows [ 510-PS , Pros. Ex. 15U~\ :

“On the occasion of the reported landings by English com-
mandos on Patmos on 19 February and on Piscopi on 23 Feb-
ruary, reference is made once again to subject order.”

The defendant claims that he knew this teletype order would
not be carried out from conversations which he had with General
Foertsch, Chief of Staff of the Southeast Command. The wording
of the order is that of the defendant. It provides that with ref-
erence to a specific case, “reference is made once again to the

670

Commando Order”. The teletype is addressed to the Commander
in Chief, Southeast, la. It amounts to a direct order to him to
apply the Commando Order. That Foertsch would receive this
order we can only infer from his position as chief of staff. That
he would ignore it, and his commander in chief would ignore it,
we are asked to believe on the basis of some conversations of the
defendant with him. As has been pointed out so frequently in
this case, the chief of staff was charged with the responsibility
of bringing such matters to the attention of his commanding gen-
eral, and had no command authority over subordinate units of a
command. The defendant could not assume that the order would
not be carried out.

The defendant states that this order was signed “by order” and
therefore it carried the weight of the Supreme Command of the
German Wehrmacht. This Tribunal is not impressed with the
defense that orders were issued by the OKW and OKH with the
intention or understanding that they were not to be carried out,
or meant something contrary to their express wording. The his-
tory of German arms and the record in this case do not indicate
that the German Wehrmacht acted in an advisory capacity to
subordinate units and their commanders' orders were issued to be
obeyed as written.

In late May or early June 1944, the following teletype was pre-
pared and transmitted to the Commander in Chief, Southeast, la,
top secret [N OKW -27 7, Pros. Ex. 155 ] :

“Since details transmitted are sufficient for presentation to
the Turkish Government, according to information received
from the Foreign Office, the English radio operator Carpenter,
and Greek sailor Lisgaris captured at Alimnia are no longer
needed and are released for special treatment according to the
Fuehrer order.”

This was signed “by order” Warlimont. Pursuant to this tele-
type the Commander in Chief, Southeast reported these men were
released for special treatment. Warlimont testified with reference
to another document of 7 November 1943, when asked what he
understood by special treatment:

“* * * at that time, I said to myself ‘special treatment' means
that these soldiers are not treated as prisoners of war. What
further happened to them I didn't concern myself with.”

Kipp, a subordinate of Warlimont, in his affidavit, states the
meaning of the term as follows :

671

“Regarding the conception special treatment by the SD I
state the following : We never gave it any thought in the WFSt
as to what ways and means were used in carrying out this
special treatment. It was, however, the general feeling that
‘special treatment ’ meant that the persons involved were some-
how eliminated by the SD, that is, were liquidated.”

This Tribunal finds that in May 1944, the defendant knew that
the men whom he ordered released to the SD for special treatment
were to be executed.

On 15 June 1944, the Chief of Staff of the Commander, Southeast,
reported that pursuant to telephone instructions of Warlimont, the
German Military Mission had arranged with the Bulgarian Army
to treat enemy agents, saboteurs, etc., in accordance with the
Commando Order. On 23 June 1944, in reply to an inquiry of the
Commander in Chief West requesting instructions on the applica-
tion of the Commando Order in the invasion of the West, Warli-
mont stated in a confidential memorandum the position of the
WFSt as follows [ 531-PS , Pros. Ex. 159 ] :

“1. The Commando Order remains basically in effect even
after the enemy landing in the West.

“2. Number 5 of the order is to be clarified to the effect, that
the order is not valid for those enemy soldiers in uniform, who
are captured in open combat in the immediate combat area of
the beachhead by our troops committed there, or who surrender.
Our troops committed in the immediate combat area means
the divisions fighting on the front line as well as reserves up
to and including corps headquarters.

“3. Furthermore, in doubtful cases enemy personnel who have
fallen into our hands alive are to be turned over to the SD,
upon whom it is incumbent to determine whether the Com-
mando Order is to be applied or not.

“4. Supreme Command West is to see to it that all units
committed in its zone are orally acquainted in a suitable man-
ner with the order concerning the treatment of members of
commando undertakings of 18 October 1942 along with the
above explanation.”

This was signed Warlimont and not “by order”.

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On 25 June 1944, an interoffice communication of Deputy Chief,
WFSt to the Quartiermeister Section stated :

“Subject: Treatment of members of commando detachments.

“Chief WFSt desires that the following order be given with-
out any formalities, but clearly and simply :

672

“1. All sabotage, etc., troops, encountered outside the actual
combat area of Normandy will be eliminated, in special cases
they will be delivered to the SD.

“2. Concise instructions will be given accordingly to all troops
stationed outside the combat area of Normandy.

“3. The Commander in Chief West, starting immediately, will
make daily reports on the number of saboteurs liquidated in
this way. This number shall be given daily in the Wehrmacht
report, in order to have a deterrent effect as it was already done
in the same manner against previous commando operations.
This applies in particular to the operations of the military
commander.”

This was signed by the defendant. This ruling was transmitted
in substance by teletype, signed by Keitel, initialed by Warlimont,
to the Commander in Chief West.

On 3 July 1944, he initialed a teletype “by order” to the effect
that the order was not to be distributed further down than divi-
sional staffs and comparable staffs, and that copies below this
level were to be recalled and destroyed.

On 22 June, Warlimont initialed a letter to the WR stating that
the Fuehrer order is to be applied, even if the enemy employs
only one person for a task.

On 22 July, the opinion of various offices was obtained as to
what should be done with regard to military missions captured
with partisan groups. [Doc. 1279-PS, Pros.] Exhibit 165 con-
tains opinions of various offices as to the action they believed
should be taken. The document, in paragraph three, gives the
opinion and proposal of the Armed Forces Operations Staff, which
reads as follows:

“According to the orders issued to date even for example the
British captured in the Roesselsprung operation must be treated
as prisoners of war.

******:?:

“The Commando Order has never yet been applied to such
missions, its extended application to cover them has not yet been
ordered. If the missions are to be treated otherwise than in
accordance with the orders to date, it must first be decided
whether a foreign mission acting with the partisan groups in
the southeast is to be called a commando operation and there-
fore treated as such. Such a decision seems to be indicated even
if it does not correspond completely to the wording of the
Commando Order or to the previous definition of a commando
operation (as an especially underhand and still unusual form

673

of warfare which must be combated with the appropriate coun-
termeasures) . The principle must be adopted from the start
that all members of partisan groups, even in the Southeast, are
fundamentally guerrillas. Indeed, they are treated as prisoners
of war, for reasons of expediency, in order to obtain the largest
possible number of deserters and workers. There is no reason
for this with regard to the members of foreign missions who
are not numerous. There is therefore no necessity to treat
them in every case, in the same way as the members of partisan
groups themselves. Basically, it would be far more appropriate
to consider Anglo-American as well as Soviet Russian military
missions as commando operations and to treat their members
accordingly.

“The appended order is therefore proposed.”

This part of the document, including the appended order as
proposed, is initialed by Warlimont. The minutes of the meeting
also inclosed in this document show the handwritten note of the
defendant Warlimont —

“Why still all these discussions after decisions have been
taken according to paragraph 1?” (Initialed, Warlimont)

The final draft of the order, signed by Keitel, shows that the
proposal initialed by Warlimont to the effect that military mis-
sions should be treated as commandos, became a part of the final
order.

On 6 June 1944, Ambassador Neubacher sent a teletype mes-
sage to the foreign office stating [NOKW-3240, Pros . Ex. 1635'] :

“Wehrmacht Operations Staff, General Warlimont, gave the
order to the Chief of Staff of Army Group F by telephone to
hand over the captured war correspondents Talbot, Slapo, and
Fowler to the SD, after they had been interrogated by military
authorities and the foreign office, in accordance with the
Fuehrer Order of 18 October 1942, on the treatment of pris-
oners from British commando operations.”

From this evidence it is apparent that not only did the defend-
ant Warlimont contribute to the formulation of this order but
that he participated in its enforcement.

3 . Prohibited labor of prisoners of war — While the record in
this case establishes many orders prepared by the sections of the
WFSt under Warlimont’s supervision pertaining to the use of
prisoners of war, we are unable to find beyond a reasonable doubt
any criminal connection of the defendant as to the illegal use of
prisoners of war.

674

4. Murder and ill-treatment of enemy belligerents and prisoners
of war — In the program adopted by the leaders of the Third Reich
wherein they undertook to inspire the German population to mur-
der Allied fliers by lynch law or “mob justice”, they were indeed
sinking deeper into the morass of depravity. For in this they
undertook to incite the German people to set aside the safeguards
of law built up through centuries and to resort to mob violence.
That such a plan was fostered and encouraged by the Third Reich
is established by the record. It has been commented upon in the
judgment of the IMT and was passed upon by Tribunal III in the
Justice Case.

This plan constituting a crime against humanity, the question
arises as to the connection of the defendant Warlimont with this
criminal undertaking. As shown by the record, this plan as to
so-called Allied terror fliers was divided into two parts. The first
of these had to do with fliers who had been captured and were in
the air force prison at Oberursel. Those who it was decided had
taken part in alleged illegal activities were to be turned over to
the SD for liquidation, contrary to the provisions of the Geneva
Convention. In this regard the prosecution concedes that the
proof does not establish that any orders pertaining to this were
ever issued or carried out. The animus of the defendant in this
matter, however, is established by documents which show his
consent and approval of this proposal.

The second part of this illegal program provided that, through
the Party and the agencies of propaganda under Goebbels, the
German people were called upon to execute Allied fliers who fell
into their hands and were assured that they would not be called
to account for their actions in such cases. This was done by
orders issued to the police, by information disseminated by the
Party, by suspension of prosecutions against the populace, and
also by preventing interference of the army in such cases. The
record shows the defendant Warlimont was well informed on the
entire matter. He attended numerous conferences and personally
discussed the matter with Kaltenbrunner, one of the active par-
ticipants in the whole procedure, who informed him that lynch
law was to be the rule. There was much correspondence, in which
he took a part, with the foreign office and with Goering, who was
reluctant to consent to participation in this scheme for fear of
reprisals. The authors of the plan desired on the one hand to
intimidate the enemy and at the same time to cloak its operations
in such a manner that it would not result in reprisals. The prob-
lem was to outline for publication certain alleged acts of Allied fliers
which were contrary to international law and therefore deprived
them of the status of prisoners of war. This was not easy to do.

675

At the conference of 6 June 1944, attended by the defendant,
it is shown that he mentioned that [ 735-PS , Pros . Ex . 346] :

“* * * apart from lynch law, a procedure must be worked out
for segregating those enemy aviators who are suspected of
criminal action of this kind, until they are received into the
reception camp for aviators at Oberursel ; if the suspicion was
confirmed, they would be handed over to the SD for special
treatment.

‘Tor this purpose the WFSt would cooperate with the Su-
preme Command of the Air Force to get out the necessary regu-
lations for the use of the head of the camp at Oberursel.

“Obergruppenfuehrer Kaltenbrunner expressed his complete
agreement with this view and that the SD take charge of those
aviators segregated.”

On 14 June a draft was prepared by the quartermaster section
of the OKW, and initialed by Warlimont, which contained a

statement [734-PS, Pros . Ex . 348 ] :

“In connection with the press notices at home and abroad
about the treatment of terror fliers who fall into the hands of
the population, an unequivocal determination of the concept of
those facts which characterize a criminal action in this sense
is called for.”

Regarding this statement, Warlimont made the comment on the
draft, “This is not quite the point” ; and he further amended the
draft by stating that the definition of criminal acts is necessary
“only for publication”. The matter was taken up with the Foreign
Office by Keitel in a letter initialed by Warlimont, requesting ap-
proval of the Foreign Office to the proposed action. On the same
date a similar letter was sent to Colonel von Brauchitsch, Goer-
ing’s adjutant. This draft was corrected by Warlimont and con-
tains his initials. This letter stated as follows :

“I. On the basis of preliminary discussions and pursuant to
an agreement with the Reich Minister for Foreign Affairs and
the Chief of the Security Police and SD the following are to be
regarded as acts of terror when a case of lynch law is made
public and/or to justify the handing over of prisoners of war
among enemy fliers from the receiving (PW) camp for fliers at
Oberursel to the SD for special treatment.”

On 23 June 1944, [ NOKW-009 ,/ Pros . Ex. 347 ] a letter prepared
by the WFS/Qu. [Verw. 1] addressed to the Commander in Chief
of the Air Force, for the attention of Colonel von Brauchitsch,
undertook to speed Goering’s decision with regard to this matter.

676

On 20 June, Ambassador Ritter answered Keitel’s letter of 15 June
1944, enclosing a draft by the Foreign Office which states as follows
[ 728-PS , Pros. Ex. 1638 ] :

“In spite of the obvious objections, founded on international
law and foreign politics, the Foreign Office is basically in agree-
ment with the proposed measures.

“In the examination of the individual cases a distinction must
be made between the cases of lynching and the cases of special
treatment by the Security Service (SD).

“I. In the cases of lynch law the sharp definition of the
criminal acts, as given in numbers 1 to 4 of the letter of
15 June, is not very important. First of all no German official
agency is directly responsible; death has already occurred
before a German agency is concerned with the case. Further-
more the accompanying circumstances will, as a rule, be such
that it will not be difficult to present the case in a most suitable
manner when it is published. In the cases of lynch law it will
therefore be mainly a question of correctly dealing with the
individual case when it is published.”

Concerning the last statements of this above-quoted draft, a nota-
tion of Warlimont's appears on the margin as follows: “That is
the whole point of our letter” (initialed Warlimont).

In paragraph II concerning airmen captured by the armed
forces, Ritter shows that in his opinion these men acquired the
legal status of prisoners of war. After this statement Warlimont
placed a question mark and noted, “Precisely, this will be pre-
vented by the proposed segregation”. Ritter then went on to
state :

“These rules are so precise that any attempt to disguise an
individual case of violation by a clever wording of publication
would be hopeless.”

To this statement Warlimont wrote on the margin :

“No — through the segregation and immediately following
special treatment.”

Goering finally agreed in general to the procedure recommended
and Warlimont wrote, “We finally have to act. What else is re-
quired for that?”

During all these discussions the defendant is shown to have had
an active part and to have been concerned not only with the
legality of the question, but with the possibility of handling the
entire matter by publication in such a way as to avoid reprisals.

In a file note dated 2 October 1944 it is stated :

677

“The Herr Reichsmarschall agrees that the order OKW/WFS
Qu (Administration 1) No. 05119/44 secret of 9 July 1944,
concerning the conduct of soldiers, in case of ‘mob justice’
being attempted by the population on downed terror fliers, is
issued within the Luftwaffe as an order of the Supreme Com-
mand of the Armed Forces, but not as an order of the High
Command of the Luftwaffe.” [NOKW-548, Pros. Ex. 355 ]

It is shown that the Air Force Administrative Command VI
Tactical Group la issued on 11 December 1944 the following order,
pertinent parts of which are quoted [NOKW-3060, Pros. Ex. H62 ] :

“The Chief OKW has issued the following order (OKW/
WFS/Qu ‘Verw. V No. 01 119/44 seer, dated 9 July 1944) con-
cerning the behavior of the soldiers in cases of self-help action
taken by the civilian population against terror fliers shot down :

“Recently, it has happened that soldiers have actively pro-
tected Anglo-American terror fliers from the civilian population,
thus causing justified resentment. You will take immediate
steps in order to ensure by oral instruction of all subordinate
units and command authorities that the soldiers do not counter-
act the civilian population in such cases by claiming the
handing over to them of the enemy fliers as prisoners of war
and by protecting, and thus ostensibly siding with, the enemy
terror fliers.

“No fellow German can understand such attitude from the part
of our armed forces. The inhabitants of the occupied terri-
tories, too, must not be restrained from either resorting to self-
help out of their justified indignation against the Anglo-Amer-
ican terror fliers, or from giving other utterances to their
justified resentment against the prisoners belonging to the
enemy powers. In addition, I refer to the article by Reich
Minister Dr. Goebbels published in the ‘Voelkischer Beobachter’,
Berlin edition dated 27 May 1944, No. 148, and entitled: ‘A
comment on the enemy air terror.’ ”

The significant part of this order is that it was based on an
order of the OKW WFS/Q (Verw. 1), dated 9 July, at the time
when this matter was being discussed as outlined above. It is
contended that from the date of this order it could not have been
based upon any order actually issued by the WFSt but must have
been based upon a personal order of Hitler as Commander in Chief
of the Replacement Army. With this contention, this Tribunal
cannot agree. Regardless of the date that this order was finally
issued by the Luftgau Command, the date of the order referred
to derives from the quartermaster section under Warlimont, and

678

the date was at the time when he was concerned with this entire
matter.

We therefore find the defendant Warlimont connected with the
illegal plan of the leaders of the Third Reich fostering the lynch-
ing of Allied flyers and that he contributed a significant part to
this criminal program. The record shows many instances where
the German population, pursuant to this plan, murdered Allied
fliers who fell into their hands.

In commenting upon the defendant, Jodi stated:

“Developed better and better from year to year. In addition
to his ever eminent mental qualities his far sightedness and
his comprehensive knowledge and experiences, his National
Socialist attitude also has become strongly marked. As my
deputy and chief of the whole staff of irreplaceable value to me.
Excellent. By the Fuehrer’s order compelled to stay in present
position. ,,

J. Deportation and enslavement of the civilian population —
The record in this case, from various communications, reports and
conferences, establishes that the defendant Warlimont was well
aware of the criminal program of the Third Reich as to the depor-
tation and use of civilians from the occupied territories for slave
labor in Germany. As to his connection therewith, [Doc. 3819-
PS, Pros.] Exhibit 536 shows that Warlimont attended a confer-
ence in the Chancellery of the Third Reich, called for the purpose
of taking intensive measures for the recruitment of foreign
laborers. The minutes of this conference, in pertinent part, read
as follows:

“The representative of the head of the OKW } General Warli-
mont, referred to a recently issued Fuehrer order, according to
which all German forces had to place themselves- in the service
of the work of acquiring manpower. Wherever the Wehrmacht
was and was not employed exclusively in pressing military
duties (as for example, in the construction of the coastal de-
fenses), it would be available but it could not actually be
assigned for the purposes of the GBA [Plenipotentiary General
for Labor Allocation] . General Warlimont made the following
practical suggestions :

“a. The troops employed in fighting partisans are to take
over in addition the task of acquiring manpower in the par-
tisan areas. Everyone, who cannot fully prove the purpose of
his stay in these areas, is to be seized forcibly.

When large cities, due to the difficulty of providing food,
are wholly or partly evacuated the population suitable for labor
commitment is to be put to work with the assistance of the
Wehrmacht.

679

“c. The seizing of labor recruits among the refugees from the

areas near the front should be handled especially intensively

with the assistance of the Wehrmacht. ,,

The Tribunal is of the opinion that these suggestions of the
defendant Warlimont made at these conferences are themselves
sufficient to connect him criminally with the illegal program of
the Reich for recruiting slave labor. Further, we find from the
evidence as shown in [Doc. NOKW-564, Pros.] Exhibit 1631 of
3 August 1944 and [Doc. NOKW-552, Pros.] Exhibit 1632 of
10 August 1944, shortly after the conference of 12 June 1944,
that the methods which he suggested were put into operation.

The Tribunal finds the defendant guilty of criminal participa-
tion in and connection with the deportation and enslavement of
civilians.

6 . Plunder of public and private property and wanton destruc-
tion — The record in this case shows that the defendant Warlimont
had knowledge of this matter, but we are unable to find from the
evidence in this case beyond a reasonable doubt that he was con-
nected therewith.

7. Murder, ill-treatment, and persecution of civilian population .

a. Criminal connection ivith the Barbarossa Order — The evi-
dence in this case, including but not limited to Exhibits 590 and
593, establishes the criminal participation of the defendant in the
formulation of the Barbarossa Jurisdiction Order and we so find.
We have discussed this order in other parts of this judgment, and
in particular as to the defendant Lehmann, and shall not go
into it further here.

b. Illegal executions of the civilian population — The defendant
is also charged with participation in the formulation of the so-
called Hostage Order. This order is in fact not a hostage order in
any meaning of the term but, regardless of the designation that
may be given to it, it is a criminal and illegal order and we so
find. It is claimed by the defendant that page two of this order
was taken out and rewritten without his knowledge while page
one and three remained unchanged. It is conceded by the defend-
ant, however, that the type is the same on the three pages, and
that the second page might have been written in the Regional De-
fense Division of the OKW. Careful examination of this docu-
ment and the testimony of the defendant in regard thereto brings
out further significant facts. Page two begins with paragraph
two. It ends with the second paragraph under the heading “c”.
It is obvious that page three refers to the last paragraph on the
preceding page. From the statement “clever propaganda of this
kind, etc.,” it is clear that the first paragraph on page three fol-

680

tip

it?

k

noi:: f

lows the last paragraph on page two. It is further evident that
in the original unchanged document there must have been a
paragraph three with subheadings a, b, and c. It is very unlikely
that either Hitler or Keitel, in changing a draft of the defend-
ants with which they were not satisfied, would have followed the
paragraphing of the defendant in so doing. Apparently one of
these paragraphs had to do with the number of people who were
to be shot in atonement for each German soldier. In respect to
that number, the defendant no longer remembers whether or not
the original draft, prepared by the defendant, contained the
figures 5 to 10 as the ratio established, and he states to the best
of his recollection, no figures were contained in the original draft.
It is apparent, however, from the evidence that some ratio was
to be established. Keitel’s testimony before the IMT regarding
this matter merely shows that the ratio submitted by him to Hitler
was changed from 10 and 5 to 100 and 50 by Hitler.

Paragraph 3(a) provides —

“It should be inferred, in every case of resistance to the
German occupying forces, no matter what the individual circum-
stances, that it is of Communist origin.”

i

:

r

an:

s>

'if

in !

1 j

i

I

r

This provision in itself was illegal. Defendant’s recollection on
the whole matter appears to be somewhat vague but he recalls
that in the headquarters it was general talk that Hitler added the
zeros to the 5 and 10 figures. This we can readily believe. The
first and third pages of this order, which the defendant admits
having drawn, do not support the contention that the second page
claimed to have been submitted by him made his draft legal. We
are convinced that the original draft as submitted to Keitel was
illegal regardless of the figures inserted or whether the ratio was
left in blank to be filled in by his superiors.

Warlimont’s defense that he immediately took steps to see that
it would not be carried out throughout the wide domain of the
Wehrmacht to which it was distributed is not convincing. His
testimony that his was a negligible position is not consistent with
such a far-reaching capacity to nullify an order of the OKW.

c. Discrimination, persecution, and execution of Jews by the
Wehrmacht, and cooperation until the Einsatzgruppen and SD —
From the record in this case showing the defendant’s official
position, his associates, both superior and inferior, from his many
activities to which he has testified, and from the documents before
us, this Tribunal is thoroughly convinced that the defendant
knew of the extermination program which was being carried out
by his superiors and associates. Just when he acquired this
knowledge it would be impossible to determine, and we are unable

681

to find beyond a reasonable doubt from the evidence before us that
he knowingly was connected with or participated in its execution.

(1. Cooperation v'it'h the Einsatzgruppen of the Rosenberg staff
— From his position as Jodi’s deputy as liaison agent with the
Rosenberg organization, we also are convinced of his knowledge
of the illegal activities carried out by this organization. But
we are, from the evidence before us, unable to find beyond a
reasonable doubt that he was connected with its illegal activities.

e. Reprisals against families of French officers — The record
in this case establishes the discreditable and inhumane attitude
of the defendant toward innocent members of families of French
officers, but we are unable to find from the evidence where he
participated in any international criminal act in this matter.

/. The Night and Fog Decree — The question arises as to the
connection which the defendant Warlimont had with this decree,
but we are unable to find from the evidence beyond a reasonable
doubt any criminal connection therewith.

g . Other illegal orders — On 1 July 1944 Warlimont sent the
following teletype to the Chief of the WR [NOKW-2576, Pros. Ex.
823 ] :

“Subject: Combating of enemy terrorists in the occupied ter-
ritories

“On account of events in Copenhagen, the Fuehrer has de-
creed that court martial proceedings against civilians in the
occupied territories must be discontinued with immediate effect.
WR is requested to submit suggestions for the draft of an
order concerning the treatment of enemy terrorists and sabo-
teurs among the civilian population in the occupied territories
by 2 July, 2000 hours.

“Policies

“Terror can be countered only by terror, but court martial
sentences only create martyrs and national heroes.

“If German units or individual soldiers are attacked in any
manner, the commander of the unit and/or the individual
soldier are bound to take countermeasures independently and,
in particular, to exterminate terrorists. Terrorists or sabo-
teurs who are arrested later, must be turned over to the SD.”

As a final paragraph, which is hardly adapted to relegate the
Commando Order to the oblivion which he claims to have so
earnestly sought, the defendant states:

“The Fuehrer Decree on the treatment of enemy commandos,
dated 18 October 1942 (The Fuehrer No. 003830/42 top secret
(mil.) OKW/WFSt) will remain in force as it does not apply
to the civil population.”

682

The record in the case shows that the defendant, during the
course of the war, was located at Hitler’s headquarters and in
constant contact with Keitel and Jodi, and attended almost daily
conferences with Hitler.

We have found the defendant guilty of participating in many
criminal orders which permeated the conduct of the war. He may
not have furnished the basic ideas, but he contributed his part
and was one of the most important figures of the group which
formed them into the final product which, when distributed
through the efficient agencies of the Wehrmacht and police,
brought suffering and death to countless honorable soldiers and
unfortunate civilians.

The defendant Warlimont is guilty under counts two and
three of the indictment.

OTTO WOEHLER

Otto Woehler was born on 12 July 1894. He participated in the
First World War as troop leader and was wounded three times.
Following the war he became an officer in the Reichswehr, or One
Hundred Thousand Man Army, and served in various capacities
until 1 April 1938, when he was transferred to the staff of the
Army Group 5 in Vienna under General List. This became the
14th Army and he continued to serve with this army as la
throughout the Polish campaign. After this he was transferred
and became Chief of the General Staff of XVII Corps. He partici-
pated as such in the Western Campaign.

In the fall of 1940 he was transferred and became Chief of
Staff of the 11th Army which was newly activated. On 1 May
1942, he was transferred and appointed Chief of Staff of the
Army Group Center where he remained for 10 months. In
March of 1943, he was given command of I Army Corps as acting
commanding general and later, on 1 June 1943, was designated
as the commanding general of this corps. On 1 July 1943, he
took over command of XXVI Corps which he held until approxi-
mately 14 August 1943. At approximately this time he was trans-
ferred to Army Group South and became Commander of the
Army [Armee-Abteilung] Kempf which on 15 August, when he
took over, was known at times as the Army Group [Armee-
Gruppe] Woehler and ultimately became the 8th Army. He was
Commander in Chief of the 8th Army until December 1944. On
22 December he was designated as Commander in Chief of Army
Group South which he held until 6 April 1945.

He did not belong to the Nazi Party or any of its formations.

Aside from the charge of crimes against peace, heretofore dis-

893964—51 45

683

posed of in this opinion, we think that charges under counts two
and three of the indictment may be disposed of under the follow-
ing headings: (1) The Commissar Order; (2) The Commando
Order; (3) murder and ill-treatment of prisoners of war; (4)
prohibited labor of prisoners of war; (5) The Barbarossa Juris-
diction Order; (6) hostages and reprisals; (7) plunder and
wanton destruction; (8) deportation and enslavement of civilians;
(9) murder, ill-treatment, and persecution of civilians.

7. The Commissar Order — The proof in this case shows the
defendant, as chief of staff of the 11th Army, knew of the receipt
of this order. It does not, however, establish any participation
in its transmittal to subordinate units. It also shows that he
knew of the enforcement of this order in the 11th Army but the
responsibility for carrying out this order within the 11th Army
must rest with the commander in chief and not with the chief
of staff. Criminal acts or neglect of a commander in chief are
not in themselves to be so charged against a chief of staff. He
has no command authority over subordinate units nor is he a
bearer of executive power. The chief of staff must be personally
connected by evidence with such criminal offenses of his com-
mander in chief before he can be held criminally responsible.

2 . The Commando Order — The proof in this case does not
establish that it was distributed by the defendant or that it was
executed with his knowledge and consent.

3. Murder and ill-treatment of prisoners of war — As Chief of
Staff of the 11th Army, he is charged with responsibility for an
order issued by the OQu for “AOK”. While part of this order
is considered criminal by the Tribunal, the fact that this order
was issued by a subordinate of the defendant in the staff organi-
zation over whom he had no command authority leads the Tri-
bunal to conclude that the defendant was not connected therewith.
The OQu was a subordinate of the chief of staff but he was also
a subordinate of the commander in chief and to hold the chief
of staff responsible for this order, we must necessarily make the
assumption that it was not issued by the commander in chief
without his intervention which the document in itself does not
establish. The fact that this order was actually carried out by
subordinate units as shown by evidence in the record is the
responsibility, as stated above, of the commander in chief and
not of the chief of staff.

As Commanding General of the I Army Corps, the record estab-
lishes that he reported to the AOK 18 the illegal shooting of two
captured Red Army soldiers. The defendant made these reports
as commanding general and apparently did nothing about them

684

but his acquiescence and approval are not considered established
by the evidence.

4. Prohibited labor of pi'isoners of war — Documents in evi-
dence show that while Commander in Chief of the 8th Army, units
subordinate to Woehler used prisoners of war in the combat area
and that such prisoners were allocated to regiments for the con-
struction of field positions. It is the opinion of this Tribunal as
heretofore stated, that the use of prisoners of war by regiments
and forward units of command in a combat area constituted a
use in a position of danger. We are further of the opinion from
the evidence that the defendant knew and acquiesced therein.
The fact that similar use was made of German prisoners by the
enemy is only a factor in mitigation and not in defense.

5. The Barbarossa Jurisdiction Order — It is shown that this
order was received by the 11th Army but no criminal connection
with its distribution has been established by the evidence as to
this defendant. Criminal acts thereof are to be charged against
the commander in chief, not the chief of staff as heretofore stated.
However, on 5 September 1941, an order was issued by the 11th
Army, signed for the AOK by Woehler, as chief of staff. From
the nature of this order, it would appear that it was not of that
basic nature which necessarily would be submitted to a commander
in chief. It is such an order as a chief of staff would normally
issue of his own volition. Whether or not that be so, the wording
of this order would certainly be a matter that would come within
the jurisdiction of a chief of staff of an army. This order pro-
vides in paragraph 5 as follows :

“Guarding the front lines alone is not sufficient. Corps as
well as the Commander of the Army Rear Area has to send patrols
constantly to the main rear lines of communication for 'raids’,
which arrest all suspicious civilians and check whether they
reside in the area. Civilians who are sufficiently suspected
of espionage, sabotage, or of partisan activities are to be shot
by the GFP after interrogation. Strangers in the area who
are unable to establish the purpose of their stay credibly are,
if possible, to be turned over to the SD detachments, otherwise
to prisoner camps to be sent on to the SD detachments. Young
boys and girls, which are preferentially employed by the
enemy, are not to be excepted.”

Under this paragraph it is provided that civilians who are
“sufficiently suspected” of certain offenses are to be shot, including
boys and girls. The defendant’s explanation that this order does
not mean what it says is not convincing. At its best it could only
be construed as ambiguous and if it meant something other than

6&5

what it states, it was certainly the province of the chief of staff
to see that that error was corrected. The Tribunal is of the
opinion that it meant precisely what it stated and that the defend-
ant was criminally connected therewith and is responsible there-
for.

We are not impressed with the contention that suspects were
interrogated before being shot. The record in this case shows
that the purpose of such interrogations was primarily to obtain
information of value to the German Army and not in the interest
of the person interrogated under such orders.

The Kodyma incident had been suggested as establishing crim-
inal responsibility upon the defendant. The record shows that
the report on this matter came to Woehler’s knowledge and was
initiated by him and he testified that he called the matter to the
attention of his commander in chief. If he did so, this was all
that could be expected of him. The responsibility in this case
rests with the commander in chief and was not the responsibility
resting upon the chief of staff.

6. Hostages and reprisals — As regards this matter the charges
against the defendant are based upon transactions which took
place within the area of the 11th Army while he was chief of
staff.

No personal action which he took or neglected to take within
the scope of his authority is shown by the evidence and for the
reasons above stated, the opinion of the Tribunal is that the
proof fails to establish his criminal connection.

7. Plunder — The Tribunal is of the opinion that the evidence in
this case fails to establish under this heading any connection
of the defendant with criminal responsibility for plunder not
justified by military necessity.

8. Deportation and enslavement of civilians — The evidence in
this case shows that as Chief of Staff of the 11th Army, orders
pertaining to the use of civilians were issued for the 11th Army
which were signed by Woehler. These orders are not basic orders
and would normally be issued by a chief of staff without even
consulting the commander in chief and certainly without such
orders being drawn by the commander in chief. These orders
show the illegal use of civilians with which the defendant is
criminally connected.

Further, the evidence in this case establishes the practice of
compulsory illegal use of civilians under Woehler as Commander
in Chief of the 8th Army by units subordinate to him. The evi-
dence further shows that on 25 June 1944, an order was issued
for the headquarters of the Army Group Woehler “by order,”
and signed by his quartermaster. This order provided for the

686

compulsory recruitment of civilians and others to the Reich for
slave labor in the mines.

,9. Murder , ill-treatment, and persecution of the civilian popu-
lation — The evidence in this case establishes the elimination of
so-called undesirables, mostly Jews, within the area of the 11th
Army while Woehler was chief of staff. This murder program
was carried out under the direction of Ohlendorf who appeared
as a witness for the defense in this case. The approximate num-
ber of murders committed within this area was in the neighbor-
hood of 90,000 including men, women, and children. The evidence
establishes that this murder program was known in part at least
to staff officers under Woehler. The defendant denies knowledge
of this program.

The evidence establishes that he held various conferences with
Ohlendorf and Ohlendorf testified that the matter was not specifi-
cally discussed because he assumed the defendant was aware of the
program. This program was carried out over an extensive period
of time and in many places within the occupational area of the
11th Army. It was executed by Einsatzgruppen and Sonder-
kommandos of the SIPO and SD attached to that army, sheltered,
fed, and placed by that army. Certainly the slaughter of 90,000
people by these police units under these circumstances could not
have escaped the knowledge of the chief of staff of that army
unless he was grossly incompetent. The defendant did not indi-
cate incompetence while on the stand and the comments of his
various commanders as shown by his service record refute any
such appraisal. But we need indulge in no general presumptions.
The record establishes knowledge by the defendant of the exter-
mination activities of these Einsatzgruppe units.

Ohlendorf whom the defendant called as his own witness, testi-
fied that staff officers of the 11th Army, over whom the defendant
exercised supervision, knew of his activities. He also testified
that he received cooperation from various units of the army, such
as the furnishing of trucks to take his victims to the places of
execution, and that at times the army called on him for assistance
in these matters. Surely the knowledge of these staff officers was
not kept from the chief of staff. Further, the documentary evi-
dence in this case establishes the defendant’s knowledge. Among
those we cite :

[NOKW-3437, Pros.] Exhibit 1601 — initialed by Woehler.
[NOKW-641, Pros.] Exhibit 871 — bearing his signature.
[NOKW-3238, Pros.] Exhibit 1606 — initialed by Woehler.

[NOKW-584, Pros.] Exhibit 781 — pertaining to the execution of
some 1,184 people in retaliation for activities in Yevpatoriya.

687

[NOKW-1687, Pros.] Exhibit 780 — which refers to the same in-
stance and states that 1,300 were executed.

[NOKYV-1573, Pros.] Exhibit 883 — A report of the Ortskomman-
dantur, 14 November 1941, to the rear area of the 11th Army,
which states that 10,000 Jews remaining were being executed
by the SD.

[NOKW-1632, Pros.] Exhibit 872 — Report of Ortskommandantur
at Melitopol, 13 October 1941, wherein it is shown that 2,000
Jews were executed by the SD; an instance which occurred
within 15 to 20 miles of the headquarters of the 11th Army.

[NOKW-1702, Pros.] Exhibit 861 — A communication from the
Ortskommandantur of Anayev of 3 September 1941, which
reports the shooting of 300 Jews and Jewesses on 18 August
1941, to the commander of the rear area of the 11th Army.

[NOKW-3236, Pros.] Exhibit 1607 — A report to the 11th Army
by Ohlendorf, initialed by Woehler.

[NOKW-3234, Pros.] Exhibit 1609 — A report by Ohlendorf, ini-
tialed by Woehler, showing the imprisonment of 227 Jewish
suspects and showing the execution of Jews as hostages
and the shooting of political functionaries of the Communist
Party by the Einsatzgruppe unit.

[NOKW-3237, Pros.] Exhibit 1595 — A report of 4 August 1941,
showing that 97 Jews were executed in Kodyma by units
of the Einsatzgruppen and 24 soldiers subordinate to Sal-
muth, which instance Woehler states he reported to his
commander in chief.

[NOKW-3233, Pros.] Exhibit 1594 — A report of 4 August 1944,
by Ohlendorf to the effect that 68 Jews had been shot for
Communist activities, and showing the establishment of a
ghetto in Kishinev, and further stating that on 31 July,
Jewish hostages were shot.

The defendant disavows knowledge of events occurring in the
rear area of the 11th Army on the basis that the Oberquartier-
meister or Qu. 2 did not report to him such matters in connection
with the army rear area. Field Manual 90 for 1 June 1938, edition
1940, states “The Oberquartiermeister is subordinate to the Chief
of the General Staff of the Army”. As Chief of the General Staff
of the 11th Army, the defendant was chief of staff for the whole
army area including the army rear area. It was his duty as
Chief of Staff of the 11th Army to consult with subordinates on
his staff as to matters occurring therein and to advise his corn-

688

mantling general concerning such matters. We cannot believe that
in neglect of that duty the defendant’s knowledge of matters con-
cerning the 11th Army stopped at the boundary of the rear area.

On this evidence the Tribunal can only find that the defendant
Woehler had knowledge of the extermination activities of the Ein-
satzgruppen when he was Chief of Staff of the 11th Army.

He was not, however, the commanding officer, and his criminal
responsibility must be determined from personal acts in which
he participated or with which he is shown to have been con-
nected. This resolves itself into the question as to whether as
chief of staff he assigned Einsatzgruppen to various localities
wherein they operated and carried on their illegal activities. That
he did so is shown by both the testimony of Ohlendorf and by
documents in evidence. [Doc. NOKW-3453 Pros.] Exhibit 1605
shows that the defendant on 3 July 1941 issued an order, signed
by him, assigning a Sonderkommando to Stanca. This order
states that the Sonderkommando performs its duties at the
order of the chief of the Security Police and on its own respon-
sibility.

On 14 July a similar order was issued assigning Einsatzkom-
mando 11a to LIV Army Corps “in order to carry out its assign-
ment in Kishinev”. This order states :

“Einsatzgruppe D of the Security Police, except for the Son-
derkommando in action, will continue to be subordinated in
Piatra Neamt to AOK 11.”

It states further :

“In accordance with information received from Army Group
South, it is not intended to employ Einsatzgruppe D, in the
army area.”

On 22 July he signed an order stating that the Einsatzgruppe D
“except Sonderkommando 11a and 10a is to be moved from
Piatra Neamt to Iasi,” and providing that “Sonderkommando
lib will be employed in the area of the 2d Rumanian Army with
the task to carry out assignments of a political nature”.

On 7 August he signed a similar order to the Einsatzgruppe D,
stating “The Einsatzkommandos which are employed have to look
after security in the combat area behind the combat troops from
the counterintelligence point of view in addition to the tasks given
them so far”.

This same exhibit shows that on 20 September the defendant
initialed a communication addressed to the 11th Army which was
transmitted under date of 29 September to the counterintelligence
officer to take action, concerning measures taken by the Ein-

689

satzgruppen of the 22d Infantry Division and also shows on 6
October 1941 from Army Headquarters with the subject “Measures
taken by the Einsatzkommando with the 22d Infantry Division”
and addressed to the Einsatzgruppe D, the following directive:

“The Einsatzkommando of the Security Police with the 22d
Infantry Division is in the combat area of the division. It is
expected that all measures in the town of Genitchek, especially
public executions, setting up and arming the Ukrainian Home
Guard, etc., will only be taken after previous agreement with
the Ic of the division.”

This is signed by the AOK, Chief of Staff, initialed by Riesen,
R-i-e-s-e-n, and evidently bearing another initial “R”, a major of
the general staff corps. This directive to the Einsatzgruppen is
also shown in [Doc. NOKW-641, Pros.] Exhibit 871.

Certainly these orders as to the location of Einsatzgruppe units
were not such basic orders as can be charged to the commander
in chief, but would clearly be within the sphere of authority of
a chief of staff.

For the reasons herein stated, and on the whole record, we find
the defendant guilty under counts two and three of the indictment.

RUDOLF LEHMANN

Rudolf Lehmann was born in 1890 at Poznan. After prelimi-
nary education, he studied law and received his doctor’s degree
in 1920 at Marburg. His practice, however, was interrupted by
the First World War in which he participated as an officer in the
reserve. From then on he followed the career of jurist in various
capacities.

In 1925, he became an assistant in the Reich Ministry of Jus-
tice and continued in the Ministry in various capacities until 1937.
In that year he became presiding judge at the newly created
Reich Armed Forces Court which was the highest military court
in the German Reich. He sat on the tribunal which was appointed
by Hitler to investigate the charges against General Freiherr von
Fritsch. He testified that he drew up the verdict in this case. On
15 July 1938, he became Chief of the Legal Department of the
OKW, designated in the documents as WR, which position he held
until the capitulation of Germany. He held this position as a
civil servant. On 1 May 1944, he was given the military title of
Generaloberstabsrichter which was in fact a general in the
German Army, which corresponds to that of a lieutenant general
in the Army of the United States. He was not a member of the
Nazi Party or any of its formations. The record does not estab-
lish that any honors were conferred upon him by the Nazi Party.

690

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Aside from the charge of crimes against peace, heretofore dis-
posed of in this opinion, we think that charges under counts two
and three of the indictment may be disposed of under the follow-
ing headings: (1) The Commissar Order; (2) The Barbarossa
Jurisdiction Order; (3) The Commando Order; (4) Night and
Fog Decree; (5) Terror and Sabotage Decrees. These subjects
will be discussed in the order herein designated.

1. The Commissar * Order — The only connection which the de-
fendant is shown to have had with the issuance of the Commissar
Order was an immaterial change in the wording of section 3 as to
courts martial and the Tribunal is unable to find from the evi-
dence any criminal connection of the defendant Lehmann with
the issuance of this order.

2 . The Barbarossa Jurisdiction Order — In this judgment we
have previously discussed the legality of the Barbarossa Juris-
diction Order and have found it to have constituted an illegal
order. The question now arises as to the criminal connection of
the defendant Lehmann therewith.

The defendant Lehmann first received an order concerning this
matter sometime in late April of 1941. The early stages of the
development of the order are shrouded in obscurity as far as they
appear in the documents in evidence. The defendant Lehmann,
in his testimony, has given a rather elaborate statement as to
what these developments were and his connection therewith.
We shall not go into these early developments extensively. From
his testimony it would appear that the circumstances of the order
as communicated to him by Keitel's adjutant so aroused him that
he drew an impracticable order to the effect that legal officers
would be dispensed with in the German Wehrmacht and sent
into combat service. According to his testimony, his reaction
to the communication he received was primarily based upon the
effect of the order upon military jurisdiction.

The Barbarossa Jurisdiction Order which was finally produced
is an excellent example of the fundamental and essential func-
tions which a staff performs in producing a military order from
an original idea. The record discloses conferences, telephone calls,
and much correspondence, all independent of Hitler. In this way
the details of the order were worked out. Many of these details
originated in the minds of various staff officers and some in the
mind of the defendant.

In summarizing the generally significant parts of these proceed-
ings, it is shown that on 28 April 1941, the defendant prepared a
draft of the Barbarossa Jurisdiction Order. On or about 6 May
he received a copy of an order which had been prepared by the
OKH, apparently by General Mueller, the General for Special

691

Assignments with the OKH, which embodied certain ideas of Gen-
eraloberst Haider, Chief of Staff of OKH. On 9 May the defend-
ant reported to the Chief, WFSt, Department L (Warlimont) con-
cerning certain discussions which he had with General Mueller and
General Jeschonnek, and also as to discussions with the chiefs
of the legal sections. The defendant had conferences with both
General Mueller and General Jeschonnek concerning this matter.
As an outgrowth of these activities a final and fourth draft
was submitted to Keitel which, with a few minor modifications,
was issued over the signature of Keitel and became what is
known as the Barbarossa Jurisdiction Order.

In connection with these various conferences and various drafts
and the correspondence connected therewith, it is apparent that
the defendant’s ideas for good or evil became a part of this order
as issued. On the favorable side as to these details it can be
said that he did not embody in the final draft which he submitted
the inflammatory language which was contained in the first draft
submitted by the OKH. Furthermore, in his favor in this con-
nection, it is pointed out that that draft provided that inhabitants
“who take part or intend to take part in the hostilities as guer-
rillas, etc.”, and that in the defendant’s final draft the words “or
intend” were not included. His final text, however, contained the
provisions as to collective punishments which left the door wide
open to the decision of an officer of at least the rank of a battalion
commander to impose such collective punishments as he saw fit.

This evidence also shows that due to the influence of the de-
fendant the provision was finally inserted in the order to the
effect that troops would dispose of all cases and that courts were to
have no jurisdiction whatsoever, whereas General Mueller had
urged that troops were to dispose of only those clear cases and
that doubtful cases were to be left to the jurisdiction of the
courts. The defendant’s comments on this matter are significant
as shown by the document where he states:

“The draft of the army comes very near to our own proposals.
The only sentence missing is the provision that the courts
of the armed forces have no jurisdiction at all over the in-
digenous inhabitants. General Haider wished to have this
jurisdiction maintained for those cases in which the troops
have no time for investigations and for the large number of
offenses of minor kinds in which execution by shooting is now
justified. I have objections to this, shared by General
Jeschonnek.

“Once we take this step, we must take it fully. Otherwise it
is to be feared that the troops will get rid just of those cases

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692

which they consider awkward, namely, the doubtful cases by
handing them over to the courts. Thus, the outcome will be
contrary to the result we aim at.”

In this decision his position was approved by the defendant
Warlimont as is shown by the same page of the document. This
provision in the order, which obviously was not derived from
Hitler, or Keitel, or Jodi, is one of the most vicious parts of the
order. The defendant’s reasons for this provision appear from
the documents and his own testimony to have been that in the
event such cases were handed over to the courts, the courts would
acquit the defendants for lack of evidence; that those acquittals
would bring upon the military courts criticism by Hitler to the
effect they were too lenient, as he had done with reference to
certain decisions made during the Polish campaign. In other
words, it is apparent that, in order to avoid criticism of military
courts by the Fuehrer, he was ready to sacrifice the lives of inno-
cent people.

The discussions about the disciplinary features of this order
also show the part that a staff officer plays in the final structure
of an order. The net result of the entire proceedings as to this
order was that Lehmann became the main factor in determining
the final form into which the criminal ideas of Hitler were put;
that he modified those ideas within his own sphere up to a certain
point and placed the whole into an effective military order which
was transmitted to the troops and carried out.

Under the record, we find him responsible for criminal connec-
tion with, participation in, and formulation of this illegal order.

3. The Commando Order — The Commando Order is another
example of the part a staff officer plays in the final structure of a
military order. Like the preceding Barbarossa Jurisdiction Order,
it cannot be said that the whole of the Commando Order, or the
major part of it, is a product of one man’s mind. We are not
concerned with the question of determining just how far the
ideas of any one man are embodied in these orders except insofar
as ideas that can be traced to a given defendant show his own state
of mind in contributing criminal parts to the criminal whole.
The basic criminal offense is in the essential part a staff officer
performs in making effective the criminal whole.

This was a criminal order in which the defendant Warlimont,
as has been pointed out, was a major factor and the defendant
Lehmann’s activities were subordinate to a large extent. The
defendant was well aware of the criminal nature of this order.
This had been pointed out by Admiral Canaris in various tele-
grams with which he was familiar. He made certain sugges-

693

tions as to methods which might, by a strained construction, give
some appearance of legality and be suitable for publication ; con-
structions which he apparently did not believe himself.

We find no provisions in this order where he contributed to its
inherent viciousness but he was one of those responsible for its
final production in the form in which this criminal order was
transmitted to the army and he was criminally responsible for a
part of the vicious product.

h. The Night and Fog Decree — The Night and Fog Decree
basically involved legal questions, and in this, as in the Bar-
barossa Jurisdiction Order, the defendant Lehmann was the
major craftsman of its final form. It was the defendant Leh-
mann who conducted the negotiations whereby the Ministry of
Justice was given the task of trying those persons charged under
this decree before the Special and, later, the People’s Courts,
wherein they were deprived of the rudimentary rights which de-
fendants have in the courts of any civilized nation.

His defense as to this charge is not without some merit,
in that it was apparently the original idea of Hitler that these
unfortunates were to be turned over to the tender mercies of the
police for disposition. But for the reason stated above, we find
him guilty as a participant of the final production of this terror
program.

5. Terror and Sabotage Decrees — On 1 July 1944, from WFSt,
Qu. Section, Lehmann received the following communication
[NOKW-2576, Pros. Ex. 823 ] :

“Subject: Combating of enemy terrorists in the occupied terri-
tories.

“On account of events in Copenhagen, the Fuehrer has de-
creed that court martial proceedings against civilians in the
occupied territories must be discontinued with immediate
effect. WR is requested to submit suggestions for the draft of
an order concerning the treatment of enemy terrorists and
saboteurs among the civilian population in the occupied terri-
tories by 2 July, 2000 hours.

“Policies.

“Terror can be countered only by terror, but court martial
sentences only create martyrs and national heroes.

“If German units or individual soldiers are attacked in any
manner, the commander of the unit and/or the individual
soldier are bound to take countermeasures independently and,
in particular, to exterminate terrorists. Terrorists or saboteurs
who are arrested later, must be turned over to the SD.”

With this directive before him, he proceeded to make effective
the illegal desires of his superiors, which apparently bore fruit

694

in the Terror and Sabotage Decree of 30 July 1944, signed by
Hitler. In August 1944, apparently in conjunction with the
quartermaster section of the OKW, he participated in the supple-
mental order enlarging the scope of the original decree. He was
therefore in a minor capacity connected with both the order and
the supplemental directives.

On the matters above noted and on the record, we find the
defendant Lehmann guilty under counts two and three of the
indictment.

Presiding Judge Young: At this time the Tribunal will take a
short recess after which the sentences will be pronounced.

SENTENCES

Presiding Judge Young: One final concluding paragraph was
omitted from the reading of the judgment. I shall now read it.

“In the event there shall be any variation between the reading
or translation or the stenographic report of the judgment as
read and the copy thereof signed and lodged in the office of the
Secretary General the latter shall control in all particulars.”
The reading of the opinion and judgment having been con-
cluded, the Tribunal will now impose sentences upon those de-
fendants who have been adjudged guilty in these proceedings.
Each defendant receiving a sentence for a term of years shall
receive credit upon the sentence imposed upon him for such a
period or periods of time as he has been in confinement, whether
as a prisoner of war or otherwise, since 7 May 1945.

As the name of each defendant is called, he will arise, proceed
to the center of the dock and put on the earphones.

Otto Schniewind, the Tribunal having found you not guilty,
you will arise and retire with the guards. You will be released as
heretofore ordered when the Tribunal presently adjourns.

Hugo Sperrle, having been found not guilty, in accordance
with the order heretofore made, will be released when the Tri-
bunal presently adjourns.

The defendant Wilhelm von Leeb will arise.

Wilhelm von Leeb, on the count of the indictment on which
you have been convicted, the Tribunal sentences you to three years’
imprisonment. You will retire with the guards.

The defendant George Karl Friedrich-Wilhelm von Kuechler will
arise.

Georg Karl Friedrich-Wilhelm von Kuechler, on the counts
of the indictment on which you have been convicted, the Tribunal
sentences you to twenty years’ imprisonment. You will retire
with the guards.

The defendant Hermann Hoth will arise.

Hermann Hoth, on the counts of the indictment on which you
have been convicted, the Tribunal sentences you to fifteen years’
imprisonment. You will retire with the guards.

The defendant Hans Reinhardt will arise.

Hans Reinhardt, on the counts of the indictment on which
you have been convicted, the Tribunal sentences you to fifteen
years’ imprisonment. You will retire with the guards.

The defendant Hans von Salmuth will arise.

Hans VON Salmuth, on the counts of the indictment on which
you have been convicted, the Tribunal sentences you to twenty
years’ imprisonment. You will retire with the guards.

The defendant Karl Hollidt will arise.

Karl Hollidt, on the counts of the indictment on which you
have been convicted, the Tribunal sentences you to five years’ im-
prisonment. You will retire with the guards.

The defendant Karl von Roques* will arise.

Karl von Roques, on the counts of the indictment on which
you have been convicted, the Tribunal sentences you to twenty
years’ imprisonment. You will retire with the guards.

The defendant Hermann Reinecke will arise.

Hermann Reinecke, on the counts of the indictment on which
you have been convicted, the Tribunal sentences you to life im-
prisonment. You will retire with the guards.

The defendant Walter Warlimont will arise.

Walter Warlimont, on the counts of the indictment on which
you have been convicted, the Tribunal sentences you to life im-
prisonment. You will retire with the guards.

The defendant Otto Woehler will arise.

Otto Woehler, on the counts of the indictment on which you
have been convicted, the Tribunal sentences you to eight years’
imprisonment. You will retire with the guards.

The defendant Rudolf Lehmann will arise.

RUDOLF Lehmann, on the counts of the indictment on which
you have been convicted, the Tribunal sentences you to seven years’
imprisonment. You will retire with the guards.

Dr. Laternser: Your Honors, on behalf of the entire defense,
1 should like to make a brief statement. The defense has ascer-
tained that the judgment just pronounced is in contradiction with
the decisions of other military tribunals in Nuernberg with respect
to basic and important legal points. In accordance with Ordinance
No. 11, the defense asks the Military Tribunals to make a de-
cision on that point by calling a plenary session of all Tribunals.

* Defendant von Roques, while still serving sentence, died of natural causes on 25 December
1949. in the City Hospital. Landsberg/Lech, Germany.

The substantiation of this motion will be handed in later in view
of the time period allowed in that ordinance.

This motion just read has been laid down in writing by me and
I am now handing it over to the Secretary General.

Presiding Judge Young: The motion may be filed.

*******

Presiding Judge Young: The motion filed last night before the
close of the session has been translated and submitted to the
Tribunal.

The Tribunal considered the judgments of other tribunals here-
tofore rendered in arriving at the judgment in this case, and is of
the opinion there is no conflict with them and does not desire
to hear argument on the motion. Accordingly, the motion for a
plenary session filed on behalf of all of the defendants is over-
ruled without prejudice to such further rights in the matter as
defendants may have.

The Tribunal is now about to adjourn.

The Tribunal is adjourned without day.

Dr. Laternser: Your Honor, may I make a communication to
the Court: May I make a statement to the Court?

Presiding Judge Young: The Court has adjourned and I
think it would not be proper to hear a statement to the Court.
Adjourned.

The Marshal: Military Tribunal V is adjourned without day.
(The Tribunal adjourned sine die.)

XII. CONFIRMATION OF SENTENCES BY THE
MILITARY GOVERNOR OF THE U.S. ZONE
OF OCCUPATION

A. Introduction

On 10 March 1949, General Lucius D. Clay, Military Governor
of the U.S. Zone of Occupation, confirmed by separate orders all
sentences imposed upon defendants except the sentence in the case
of the defendant von Leeb. Since the defendant von Leeb at the
time of sentencing had already been in confinement for more than
the term of his sentence (three years), he was released from
prison immediately after the sentences were pronounced. This
was done pursuant to a general provision in the sentences of the
Tribunal that “Each defendant receiving a sentence for a term
of years shall receive credit upon the sentence imposed upon him
for such a period or periods of time as he has been in confinement,
whether as a prisoner of war or otherwise, since 7 May 1945”.

The orders of the Military Governor confirming the life sen-
tence of the defendant Warlimont and the order confirming the
sentence for a term of years of the defendant von Kuechler are
reproduced below (section B).

B. Orders of the Military Governor confirming the
sentences of defendants Warlimont and von Kuechler

HEADQUARTERS, EUROPEAN COMMAND

Office of the Commander-in-Chief
APO 742
Berlin, Germany

March 10, 1949

In the Case of The
United States of America

vs.

Wilhelm von Leeb, et al.

Military Tribunal V
Case No. 12

Order with respect to sentence of Walter Warlimont

In the case of the United States of America against Wilhelm
von Leeb, et al., tried by United States Military Tribunal V, Case

698

No. 12, Nurnberg, Germany, the defendant Walter Warlimont, on
28 October 1948, was sentenced by the Tribunal to life imprison-
ment. A petition to modify the sentence, filed on behalf of the
defendant by his defense counsel, has been referred to me pursu-
ant to the provisions of Military Government Ordinance No. 7.
I have duly considered the petition and the record of the trial,
and in accordance with Article XVII of said Ordinance, it is
hereby ordered that :

a. the sentence imposed by Military Tribunal V on Walter
Warlimont be, and hereby is, in all respects, confirmed;

b. the defendant be confined in War Criminal Prison No. 1,
Landsberg, Bavaria, Germany.

[Signed] Lucius D. Clay
Lucius D. Clay
General, U. S. Army
Military Governor
and

Commander-in-Chief, European Command

HEADQUARTERS, EUROPEAN COMMAND

Office of the Commander-in-Chief
APO 742
Berlin, Germany

March 10, 1949

In the Case of The
United States of America

vs.

Wilhelm von Leeb, et al.

Military Tribunal V
Case No. 12

Order with Respect to Sentence of
Georg Karl Friedrich-Wilhelm von Kuechler *

In the case of the United States of America against Wilhelm
von Leeb, et al., tried by United States Military Tribunal V,
Case No. 12, Nurnberg, Germany, the defendant Georg Karl
Friedrich-Wilhelm von Kuechler, on 28 October 1948, was sen-
tenced by the Tribunal to imprisonment for a term of 20 years.
A petition to modify the sentence, filed on behalf of the defend-
ant by his defense counsel, has been referred to me pursuant to the
provisions of Military Government Ordinance No. 7. I have

* The sentences imposed upon the remaining defendants were confirmed in all respects by
the Military Governor of the United States Zone of Occupation by individual orders.

893964—51 46

699

duly considered the petition and the record of the trial, and in
accordance with Article XVII of said Ordinance, it is hereby
ordered that:

a. the sentence imposed by Military Tribunal V on Georg
Karl Friedrich- Wilhelm von Kuechler be, and hereby is, in all
respects confirmed;

b. all time spent in confinement by the defendant be credited
against such period of imprisonment: to wit from 10 January
1046 to date;*

c. the defendant be confined in War Criminal Prison No. 1,
Landsberg, Bavaria, Germany.

[Signed] Lucius D. Clay
Lucius D. Clay
General, U. S. Army
Military Governor
and

Commander-in-Chief, European Command

* Each of the orders of the Military Governor confirming sentences for a term of years
contains a similar provision stating the exact period of confinement to be credited against
the sentence.

700

XIII. ORDER OF THE UNITED STATES SUPREME
COURT DENYING WRITS OF HABEAS CORPUS

SUPREME COURT OF THE UNITED STATES
October Term, 1948

No. 532 Misc. In the Matter of Hermann Hoth, Hans Reinhardt,
Hans von Salmuth, Karl Hollidt, Karl von Roques,
Hermann Reinecke, Walter Warlimont, Otto
Woehler, and Rudolf Lehmann.

ORDER

“Treating the application in each of these cases as a motion
for leave to file a petition for an original writ of habeas corpus,
leave to file is denied. The Chief Justice, Mr. Justice Reed, Mr.
Justice Frankfurter, and Mr. Justice Burton are of the opinion
that there is want of jurisdiction. U. S. Constitution, Article III,
Sec. 2, Clause 2; see Ex parte Betz and companion cases, all 329
U.S. 672 (1946) ; Milch v. United States, 332 U.S. 789 (1947) ;
Brandt v. United States, 333 U.S. 836 (1948) ; In re Eichel, 333
U.S. 865 (1948) ; Everett v. Truman, 334 U.S. 824 (1948). Mr.
Justice Black, Mr. Justice Douglas, Mr. Justice Murphy, and
Mr. Justice Rutledge are of the opinion that argument should be
heard on the motions for leave to file the petitions in order to
settle what remedy, if any, the petitioners have. Mr. Justice
Jackson took no part in the consideration or decision of these
applications.”

May 2, 1949

APPENDIX

OKW

OKH

OKL

OKM

WFSt

SKL (ski)
WR

Glossary of Abbreviations and Terms

Oberkommando der Wehrmacht — High Command,
German Armed Forces.

Oberkommando des Heeres — High Command, Ger-
man, German Army.

Oberkommando der Luftwaffe — High Command.
German Air Force.

Oberkommando der Marine — High Command, Ger-
man Navy.

Wehrmachtfuehrungsstub — Armed Forces Opera-
tions Staff.

Seekriegsleitung — Naval Operations Staff.

Wehrmachtrechtsabteilung — Armed Forces Legal
Department.

701

AOK

KORUECK

la

lb

Ic

Ic/AO

ss

SD

SIPO or SP
Gestapo

GFB

Politruk

Armeeoberkommando — Headquarters, field army.

Kommandeur des Rueckwertigen Armeegebietes —
Commander, Army Rear Area (field) .

Operations officer at headquarters of army field
units.

Staff officer for supply and administration at divi-
sion and army group level.

G-2 (intelligence) officer at headquarters of army
field units.

Ic/Abwehroffizier — G-2 counterintelligence officer.

Schutzstaffel — Elite guard or “Protective Force” of
Nazi Party.

Sicherheitsdienst — Security Service of SS.

Sicherheitspolizei — State Security Police.

Geheime Staatspolizei — Secret State Police (organi-
zational component of SIPO).

Secret Field Police

Political commissar attached to Soviet Army units
below battalion level (companies, platoons).

Wehrmacht — German Armed Forces.

Heer — German Army.

Luftwaffe — German Air Force.

Kriegsmarine — German Navy.

Abwehr — Counterintelligence.

Generalquartiermeister — Chief of supply and administration at
OKH.

Oberquartiermeister — Staff officer for supply and administration
at army level.

Quartiermeister — Staff officer for supply and administration at
corps level.

Ortskommandantur — town (locality) military headquarters.

Feldkommandantur — area (district) military headquarters.

Luftgau — Air Force Administration Area Command.

Einsatzgruppe — Execution and investigation unit of Security
Police and SD operating with the armed forces in the field.

Einsatzkommando

Sonderkommando

Vortragsnotiz — Office memorandum, briefing notes, notes for oral
report.

Gerichtsherr — Judge advocate with field army units.

subunits of an Einsatzgruppe.

Allgemeines Gericht
Zivilgericht
Ziviljustiz — civil court system.
Gauleiter — Area (Party district)

Civil court ; ordinary court with criminal
and civil jurisdiction in Germany.

leader of Nazi Party.

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General Generaloberst Admiral Generaladmiral Oberstgruppenfuehrer

General of the Army -Generalfeldmarschall — Admiral of the Fleet Grossadmiral Reichsfuehrer

1 Oertzenscher Taschenkalender fuer die Offiziere des Heeres (formerly Fircks), 1942 edition, pp. 371-373.

Legal officials of the German Armed Forces were nonmilitary members of the armed forces; they wore a uniform with insignia of equivalent rank.

2 Equivalent to a senior colonel.

List of Witnesses in Case 1 2

[Note] — All the witnesses in this case appeared before the Tribunal. Prose-
cution witnesses are designated by the letter “P”, defense witnesses
by the letter “D”. The names not preceded by any designation rep-
resent defendants testifying in their own behalf. Designation “1”
shows witness called by defense although affidavit was submitted
by prosecution. Designation “2” shows witness called by prosecu-
tion although affidavit was submitted by defense. Extracts from
testimony in this case are listed in the index of documents and
testimony.

Name

Dates of testimony

Pages

(mimeographed transcript)

D

P

Adalbert, Prinz von Bayern 22 Apr 48.

Alperowitsch, Eduard 2 Aug 48 _

2554-2558

9034-9038

(stricken from record)

D

1

P

D

D

D

D

P

D

D

P

D

P

D

P

D

Beguelin, Konstantin von

Berger, Gottlob

Blumenstick, Henek

Blumentritt, Guenther

Boetticher, Hans

Bogner, Eduard

Braemeb, Walter

Braeutigam, Otto

Brennecke, Kurt

Bruns, Rolf

Bruns, Walter

Busse, Theodor

Busson, Henri

Buttlar-Brandenfels, Horst

Freiherr von

Croissant, Bernhard.

Drabich-Waechter, Guenther

13 Jul 48

8 Apr 48

3 Aug 48...

29 Jul 48...
27, 28 Jul 48
25 May 48 __
23 Apr 48—

4 Aug 48

22 Apr 48—
10 May 48-_
18 Feb 48—
9, 10 Jun 48.
12 Feb 48

2 Jul 48

30 Jul 48 —

7693-7734

1694-1696

9134-9150

8822-8856

8656-8727

4737-4759

2600-2651

9159-9260

2558-2579

3680-3706

835-858

5637-5674

566-580

7103-7134

8926-8954

D

1

D

D

P

D

D

1

D

D

D

D

1 )

1 )

von

Eben, Hubert

Eberstein, Friedrich Karl von__

Eismann, Hans Georg

Fabrice, Eberhard von

Fruechte, Hans

Gersdorff, Rudolf von

Grenfell, Russel, Captain

(British)

Haensch, Walter

Halder, Franz

Hammerstein, Christian

Freiherr von

Handloser, Siegfried-

Harteneck, Gustav

Haye, Helmuth

Heiokaempkr, Otto

- 2698-2715
3751-3761
. 1436-1439
. 4177-4233
. 9310-9324
_ 9097-9134
. 2155-2205

26 Apr 48--_

11 May 48

4 Mar 48

14, 18, 19 May 48.

5 Aug 48

3 Aug 1948

16 Apr 48

28 May 48

5 Mar 48

12-16 Apr 48 ... _

21 Jul 48

8, 9 Jul 48

19, 20 May 48

25 May 48

11, 12 May 48

4976-4982

1489-1501

1817-1864; 1867-2155

8209-8232

7446-7484

4275-4403

4780-4791

3812-3878

704

i rep.

n«r

nitted
>secu*
from
i and

srnp*

215-1

Nam**

Oaten of testimony

Pages

(mimeographed transcript)

D

Heinemeyer, Walter, .

23 Apr 48

2651-2672

I>

Herrmann, Paul,.

6 Aug 48, .

9494-9500

P

Heusinger, Adolf, _

6, 9 Feb 48-

233-268

1)

Himmel, Max _

11 May 48_-- _

3738-3751

Hollidt, Karl,

20-22, 24 May 48, .

4420-4678

Hoth, Hermann

29, 30 Apr; 3, 4

May 48, ,_

3036-3289

D

Jaraczewski, Const anz von

26 Apr 48 , ,,

2755-2765

L>

Jessel, Karl Friedrich.. . - _

16, 19 Apr 48

2205-2276

D

Kattner, Liebhilde,

22, 23 Jul 48

8350-8390

D

Klements, Wilhelm _

13 Jul 48

7653-7693

I)

Kobe, Gert._,

24, 25 May 48

4678-4715

D

Koller, Karl __

18 Jun 48

6190-6249

D

Kraell, Alexander

28 Jul 48

8727-8746

P-D

Krafft, Theodor.

8 Apr 48

1622-1694

1

Krichbaum, Wilhelm __

4 Aug 48

9292-9299

Kuechler, Georg von _

27-29 Apr 48

2787-3002

P

Lahousen, Erwin , _

11, 12 Feb 48

432-549

1

Hammers, Hans Heinrich

4 Mar 48

1377-1410

1)

Land fried, Otto, _

26 Apr 48

2715-2755

n

Lancheuser, Rudolf

22 Apr 48 _ _

2580-2585

Leeb, Wilhelm Ritter von

19-22 Apr 48

2277-2534; 7770-7771

Lehmann, Rudolf - ___ _

15, 16, 19, 20, 26,

27 Jul 48

7909-8180; 8481-8582

D j

Leibbrandt, Georg- _

23, 26 Jul 48

8441-8481

p

Linde, Kurt

6 Feb 48

208-222

i

Lindow, Kurt

4 Mar 48,

1440-1458

p

Lissance, Arnold,

5 Mar 48

1527-1532

i)

Mattenklott, Franz __

19 May 48 . _

4233-4274

D

Milch, Erhard _

17, 18 Jun 48

6119-6189

1

Mueller, Eugen

8, 9 Apr 48 . . , ,

1698-1736

D

Mueller, Georg

10 May 48, __

3641-3680

1

Neumann, Otto_ _ _ _ .

9 Apr 48, - _ ,

1736-1749

D

Notti, Georg Peter Wilhelm

Erwin - _ . _

18 Jun 48_ _ _ . _ _

6254-6263

P-D

Ohlendorf, Otto- - - _

4, 6 Aug 48, ,

9265-9291 ; 9465-9494

P

Ohler, Paul _

13 Feb 48

583-592

1

Patutschnik, Heinrich Mathias,

4 Mar 48, _

1412-1434

D

Perponcher, Heinrich, Graf von.

21 Jun 48__

6276-6312

D

Plocher, Hermann,

18 Jun 48 - , -

6249-6254

2

Raetsch, Horst

3 Aug 48 . .

9061-9080

D

Reger, Horst

21 Jul 48.. -

8182-8232

Reinecke, Hermann

2, 6-9, 12 Jul 48

7179-7445; 7484-7652

Reinhardt, Hans

5-7, 10 May 48 _ ,

3334-3639

D

Richter, Otto __

23 Apr 48

2586-2599

2

Ried, Hadrian __ __

23 Jul 48

8414-8436

D

Ritter, Karl

5 Aug 48_ -

9362-9374

D

Roettinger, Hans. ,

10, 11 May 48

3707-3738

D

Roques, Franz von _ _ _

29, 30 Jul 48

8867-8925

Roques, Karl von _ _

2-4, 7, 8 Jun 48. ..

5119-5530

2

Russwurm, Wilhelm

28 Jul 48

8749-8757

Salmuth, Hans von

12-14 May 48--

3899-4177

705

Name

Dates of testimony

Pages

(mimeographed transcript)

D

Sch all, IvarL. __ .. __ _

1 Jun 48.

5023-5093

P

Schemmel, Nikolaus.

10, 11 Feb 48

402-431

SCHNIEWIND, OttO__ _

25-27 May 48

4791-4957

P

Schoenig, Hans Erich

17 Feb 48

743-762

D

Schramm, Otto. ...

9 Jun 48

5567-5602

D

Schreiner, Rudolf Friedrich

26 Apr 48

2766-2786

D

Schulte-Moenting, Erich

27, 28 May 48

4957-4976

D

Schuntermann, Karl Erich. __

1, 2 Jun 48.

5093-5119

D

Sixt, Friedrich Maria Heinrich. _

4 May 48.

3290-3303

P

Smolen, Kazimierz

24, 25 Feb 48

956-999; 1028-1031
2534-2553

D

Sodenstern, Georg von

22 Apr 48 ...

D

Sperrle, Hugo . ...

Steinbeck, Hans

(did not take stand)
8, 9 Jun 48.

5531-5566

P

Stumpff, Hans Juergen..

17 Feb 48

763-783

P

Tettau, Hans von_

28, 29 Jul 48

8757-8778

2

Thoms, Helmuth

29 Jul 48

8779-8805

D

Ullersperger, Wilhelm

29 Apr 48

3002-3017

P

P

Vorwald, Wolfgang

Wagner, Gerhard..

2 Aug 48 .

9 Feb 48_

9007-9022

268-285

D

Warlimont, Walter . _

Wenck, Walter ...

21-25, 28, 30 Jun;

1, 2 Jul 48

25 May 48

6312-7103

4715-4736

D

Westerkamp, Eberhard Karl
Ludwig

11 May 48.

3761-3811

P-D

Westhoff, Adolf .

10 Feb 48; 13 Jul 48

336-402; 7735-7751

D

Westphal, Siegfried. _ _ _

29 Jul 48

8856-8867

2

Westrem, Reinhard von

23 Jul 48

8390-8408

WoEHLER, Otto

10, 11, 14-17 Jun
48

5675-6083

706

INDEX OF DOCUMENTS AND TESTIMONIES
IN CASE 12

Document No.

C-5

C-23.

C-23.

C-29.

C-50.

C-59.

C-62.

Exhibit No.

Description Volume

Pros. Ex. 1118

Pros. Ex. 1023

Pros. Ex. 1023

Pros. Ex. 993

Pros. Ex. 594

Pros. Ex. 1181

Pros. Ex. 1145.

Letter from Admiral
Raeder to Naval
War Staff, 9 Octo-
ber 1939, concerning
naval bases in Nor-
way.

Memorandum of Navy
High Command, 18
February 1938, on
questions of type,
shipbuilding plan.

Memorandum from
Reich Defense Min-
istry to Commander
in Chief of the Navy,
September 1938,
commenting on
“Draft Study of Na-
val Warfare against
England”.

Raeder's directive to
the navy to support
the German Arma-
ment Industry, 31
January 1933.

The Barbarossa Juris-
diction Order, 13
May 1941, with
transmittal letters
from the High Com-
mand of the Armed
Forces, 14 May 1941,
and from the Naval
War Staff, 17 June
1941.

Order, 19 February
1941, directing fur-
ther tactical meas-
ures against Greek
territory.

Hitler directive for the
preparation of the
invasion of Luxem-
bourg, Belgium, and
Holland, and order
from the High Com-
mand of the Armed
Forces, 15 October
1939, concerning the
attack on Holland.

X

X

X

X

X

X

X

Page

750

518

519

466

1113

909

805

707

Document No.

C-68

Exhibit No.

Description

Volume

C-71

C-78.

C-102.

C— 120

C-120.

C-120

C-122.

Pros. Ex. 1121 Letter from chief of X

the OKW, Keitel,
to army, navy, air
force and depart-
ment National De-
fense, 27 January

1940, concerning
“Study N”.

Pros. Ex. 1119 Note for war diary of X

Naval War Staff,
undated, concerning
preparation for
“Weser Exercise”.

Pros. Ex. 1245 Notification from X

Armed Forces Ad-
jutant’s Office, 9
June 1941, and list
of participants for
conference “Barba-
rossa” on 14 June

1941.

Pros. Ex. 1037 Directive No. 1 of the X

Supreme Comman-
der of the Armed
Forces, 11 March

1938, concerning
Operation Otto.

Pros. Ex. 1079 Covering letter and di- X

rectives from High
Command of the
Armed Forces to the
army, navy, air
force, 3 April 1939,
concerning “Case
White” and the an-
nexation of Danzig.

Pros. Ex. 1079 Covering letter from X

Hitler, to army,
navy, air force, and
OKW, 10 May 1939,
enclosing instruc-
tions for economic
warfare.

Pros. Ex. 1079 Letter from High Com- X

mand of the Armed
Forces, 24 June

1939, concerning
“Case White”.

Pros. Ex. 1117 Extract from war X

diary of Naval War
Staff, 3 October
1939, concerning
Norway bases.

Page

753

752

1004

589

649

653

685

760

708

Document, Mo.

0-126 B

Exhibit No.

Description

Volume

Pros. Ex. 1090 Letter from High X

Command of the
Army to High
Command of the
Armed Forces, 3
July 1939, concern-
ing “Case White”.

C-126 C Pros. Ex. 1082 Directive from Com- X

mander in Chief of
the Navy, 16 May
1939, concerning
“Case White”, ini-
tialed by Schnie-
wind.

C-126 D Pros. Ex. 1093 Resume of conference X

at the High Com-
mand of the Armed
Forces, concerning
advance measures
for “Case White”.

C-126 F Pros. Ex. 1089 Letter from High X

Command of the
Armed Forces to
army, navy, air
force, and Depart-
ment National De-
fense of OKW, 22
June 1939, concern-
ing preparation for
“Case White”.

C-126 G Pros. Ex. 1099 Directive No. 1, for the X

conduct of the war,

31 August 1939,
signed by Hitler.

C-136 Pros. Ex. 1056 Fuehrer order, 21 Oc- X

tober 1938, concern-
ing the future tasks
of the armed forces.

C-138 Pros. Ex. 1057 Order of the High X

Command of the
Armed Forces, 17
December 1938, con-
cerning the Fuehrer
order of 21 October
1938.

C-139 Pros. Ex. 1005 Directive, 2 May 1935, X

concerning prepara-
tion for the reoccu-
pation of the Rhine-
land.

688

665

689

683

703

613

615

474

709

Document No.

C-141

C-153

C-156

C-159

C-166

C-174

C-175.

C-182.

C— 189.

Exhibit No. Description Volume

Pros. Ex. 992 Directive, 10 Febru- X

ary 1932, concern-
ing concealment of
torpedo equipment
on PT boats.

Pros. Ex. 998 Naval command direc- X

tive, 12 May 1934,
concerning the ar-
mament plan for the
third phase.

Pros. Ex. 1020 Extracts from “The X

Fight of the Navy
against Versailles,
1919-1935”, dealing
principally with con-
cealed rearmament.

Pros. Ex. 1013 Order, 2 March 1936, X

for the reoccupation
of the Rhineland.

Pros. Ex. 997 Memorandum from X

Naval Command Of-
fice, 12 March 1934,
concerning auxiliary
cruisers.

Pros. Ex. 1129 Directive concerning X

preparations for
the occupation of
Denmark and Nor-
way, 1 March 1940,
signed by Hitler.

Pros. Ex. 1022 Letter from von Blom- X

berg to commanders
in chief of army,
navy, and air force,

24 June 1937, in-
closing a directive
for the unified prep-
aration for war by
the armed forces.

Pros. Ex. 1038 Directive No. 2 of the X

Supreme Comman-
der of the Armed
Forces, 11 March
1938, concerning
Operation Otto.

Pros. Ex. 1425 Memorandum on con- X

versation between
Hitler and Raeder,
June 1934, concern-
ing naval construc-
tion program.

Page

465 |

470

433

484

470

761

488

591

472

710

Document No.

Exhibit No.

Description

Volume

D-223.

| D-629

D-762.

D-763.

D-764.

D-765_

Pros. Ex. 1420 Letter from Minister X

of Defense to Fried-
rich Krupp A.G.,

15 October 1932,
concerning con-
struction of medium
tractors.

Pros. Ex. 1126 Letter from Keitel, X

Jodi, and defend-
ant Warlimont, to
Ribbentrop, 3 April
1940, concerning
the occupation of
Denmark and Nor-
way.

Pros. Ex. 826 Hitler Order, 30 July XI

1944, concerning
combating of ter-
rorists and sabo-
teurs in enemy
countries.

Pros. Ex. 828 Keitel order, 18 Au- XI

gust 1944, extending
the scope of the ter-
ror and sabotage de-
cree of 30 July 1944.

Pros. Ex. 829 Keitel directive, 18 XI

August 1944, dis-
tributing the terror
and sabotage decree
of 30 July 1944,
and the first imple-
menting decree of
18 August 1944,
concerning the ter-
ror and sabotage
decree.

Pros. Ex. 830 Invitation, 2 Septem- XI

ber 1944, by High
Command of the
Armed Forces,
signed by defend-
ant Lehmann, to
conference on treat-
ment of enemy ci-
vilians in occupied
territory.

Paare

431

771

239

242

240

244

711

Document No.

D-766

Exhibit No.

Pros. Ex. 834 _

Description

Volume

D-767

EC-338.

EC-488.

L-79

L-323.

. Keitel order, 4 Sep- XI
tember 1944, fur-
ther implementing
the terror and sabo-
tage decree of 30
July 1944, with in-
structions concern-
ing “Night and
Fog” prisoners.

Pros. Ex. 832 Memorandum, 13 Sep- XI

tember 1944, on
conference concern-
ing treatment of
non-German civil-
ians in occupied
territory.

Pros. Ex. 253 Comments by Canaris XI

(chief of intelli-
gence, OKW) 15
September 1941,
concerning OKW
directive, 8 Septem-
ber 1941, on the
treatment of Soviet
Russian PW’s.

Pros. Ex. 1076 Letter from the Pleni- X

potentiary General
for Economy to the
High Command of
the Armed Forces,

28 January 1939,
concerning future
utilization of pris-
oner of war labor.

Pros. Ex. 1083„ Minutes of Fuehrer X
conference, 23 May

1939, concerning
indoctrination on
the political situa-
tion and future
aims.

Pros. Ex. 1122 Directive, 6 March X

1940, signed by de-
fendant Schnie-
wind, concerning
preparations for the
occupation of Den-
mark and Norway.

Page

247

246

2

645

671

767

712

Document No.

Exhibit No.

Description

Vohime

NG-077/665-PS __ Pros. Ex. 800 _

NG-262 Pros. Ex. 820

NIK-10202 Pros. Ex. 1449__

NIK-11715 Pros. Ex. 1412__

NIK-11981 Pros. Ex. 141 i__

NIK-12023 Pros. Ex. 1414__

I) raft of implementa XI
tion order for
“Night and Fog”
Decree with cover-
ing letter from
Reich Ministry of
Justice to the de-
fendant Lehmann,

16 December 1941,
requesting ap-
proval ; and hand-
written note on Leh-
mann ^s approval, 24
December 1941.

Extract from survey XI
of the disposition of
“Night and Fog”
proceedings com-
piled by Ministry
of Justice on 30
April 1944.

Two memoranda on X
commencement in
1926 of tank devel-
opment by Krupp.

— Memorandum, 6 De- X
cember 1925, con-
cerning trip of the
chief of the army
command to the
Ruhr, 24-28 No-
vember 1925.

__ Memorandum by Otto X
von Stuelpnagel, 20
September 1924,
concerning revision
of the Hague Con-
vention ' and envis-
aging possibility of
total war within 10
or 20 years.

_ Interoffice memoran- X
dum of Reich De-
fense Ministry, 18
January 1927, con-
cerning illegality of
mobilization meas-
ures.

IWc

200

217

426

421

419

427

713

Document No. Exhibit No. Description Volume Page

NIK-12160 Pros. Ex. 1408 Extracts from the X 416

peace treaty be-
tween Germany and
the Allied and As-
sociated Powers,
signed at Versailles
on 28 June 1919, on
limitations upon
German armament.

NO-3146 Pros. Ex. 943 Extracts from opera- X 1220

tional situation re-
port U.S.S.R. No.

94, 25 September

1941, concerning ac-
tivities of the Ein-
satzgruppen.

NO-3414 Pros. Ex. 362 Extract from Opera- XI 5

tional Order No. 8,
by Heydrich, chief
of the Security Po-
lice and SD, 17 July
1941, and enclo-
sures, on segrega-
tion and treatment
of certain categories
in PW camps.

NO-3417 Pros. Ex. 363 Letter of 26 Septem- XI 11

ber 1941 from Hey-
drich 's office, en-
closing letter of
transmittal, signed
by defendant Rei-
necke, and direc-
tives for the treat-
ment of Soviet pris-
oners of war, 8
September 1941.

NOKW-004 Pros. Ex. 149 Letter from Chief of XI 92

Prisoners of War
Affairs to Armed
Forces Operations
Staff, 18 May 1943,
on reporting deaths
of members of
enemy commando
units; and answer
thereto, 25 May
1943, by defendant
Warlimont. ( Photo-
graphic reproduc-
tion appears in Sec-
tion VIII.)

714

Document No. Exhibit No. Description Volume Page

NOKW-005 Pros. Ex. 161 Interoffice memoran- XI 105

dum from Armed
Forces Operations
Staff to Quartier-
meister Section, 25
June 1944, signed
by Warlimont, con-
cerning the draft-
ing of an instruc-
tion on the treat-
ment of members of
commando units in
Normandy.

NOKW-009 Pros. Ex. 347 Two letters from XI 172

OK W/Armed
Forces Operations
Staff to Commander
in Chief Air Force,

14 June 1944 and 23
June 1944, concern-
ing treatment of
enemy terror flyers.

NOKW-010 Pros. Ex. 164 Note on telephone call XI 109

by Commander in
Chief West, 29 June
1944, initialed by
Warlimont, con-
cerning Commando
Order.

NOKW-013 Pros. Ex. 156 Teletype report from XI 96

Commander in
Chief Southeast to
defendant Warli-
mont, 14 June 1944,
concerning applica-
tion of Commando
Order by Bulgarian
armed forces.

NOKW-057 Pros. Ex. 28 Affidavit of Field X 273

Marshal Keitel, 27
September 1946,
concerning the po-
sition and functions
of defendant Warli-
mont.

NOKW-065 Pros. Ex. 36 Extracts from affida- X 276

vit of General Jodi,

26 September 1946,
concerning the posi-
tion of defendant
Warlimont and the
organization and
functioning of the
Wehrmacht.

893964 - 61 -

715

Document No.

NOKW-065.

NOKW-065.

NOKW-118.

NOKW-121

NOKW-147

NOKW-209

Exhibit No.

Pros. Ex. 36

Pros. Ex. 36.

Pros. Ex. 1091

Pros. Ex. 29.

Pros. Ex. 370.

Pros. Ex. 590.

Description Volume

Extracts from affida- X 754
vit of General Jodi,

26 September 1946,
concerning the op-
eration “Weser Ex-

ercise".

Extracts from affida-
vit of General Jodi,
26 September 1946.

Covering letter from
High Command of
the Army, 24 July
1939, enclosing spe-
cial regulations con-
cerning supply in
“Case White"

Organizational charts
of the Armed Forces
Operations Staff
(chart No. 1) and
its Department Na-
tional Defense
(chart No. 2), as of
1 September 1939,
with changes of or-
ganization up to 6
September 1944.

Extract of memoran-
dum by Ministerial-
rat Letsch, Reich
Labor Ministry, 22
December 1941,
concerning confer-
ence with defendant
Reinecke on the
treatment of “seg-
regated" Russian
prisoners of war.

Letter from defendant
Lehmann to defend-
ant Warlimont's of-
fice, 28 April 1941,
transmitting Leh-
mann's draft of
Barbarossa Juris-
diction Order.

X 950

X 690 i

X 287

X 1089

X 1121

X

716

Document No.

NOKW-209.

NOKW-212.

NOKW-213

NOKW-227

NOKW-229.

Exhibit No. Description Volume Page

Pros. Ex. 590 Letter from defendant X 1126

Lehmann to defend-
ant Warlimont, 9
May 1941, concern-
ing the proposed
Barbarossa Juris-
diction Order, and
enclosing a further
draft.

Pros. Ex. 30 Comparative descrip- X 289

tion of offices of the
High Command of
the Armed Forces
and the High Com-
mand of the Army
in the domain of
the operational com-
mand according to
rank.

Pros. Ex. 163 Letter from Army XI 108

Group G to subordi-
nate units, 29 June
1944, transmitting
OKW order con-
cerning continued
application of Com-
mando Order. ( Pho-
tographic reproduc-
tion appears in Sec-
tion VIII.)

Pros. Ex. 155 Teletype from defend- XI 95

ant Warlimont to
Commander in
Chief Southeast, 4
June 1944, concern-
ing two prisoners
captured on the
island of Alimnia,
and corresponding
teletype from Com-
mander in Chief
Southeast, 5 June
1944, to counterin-
telligence officer,

Army Group E.

Pros. Ex. 1087 Letter from Comman- X 679

der in Chief of the
Army, von Brau-
chitsch, 15 June
1939, enclosing de-
ployment directive
for “Case White”.

717

Document No.

NOKW-241

NOKW-249.

NOKW-250.

NOKW-473

NOKW-484.

NOKW-511

718

Exhibit No. Description Volume

_ Pros. Ex. 1219 Notes for oral report, X

28 April 1941, con-
cerning Finland’s
participation in op-
eration Barbarossa,
signed by Warli-
mont.

.. Pros. Ex. 1191 Letter from Depart- X

ment National De-
fense to Armed
Forces Operations
Staff, 6 April 1941,
enclosing desires of
the army and the
air force for coop-
eration with Italy.

Pros. Ex. 1165 Instructions regulat- X

ing transborder
traffic and commu-
nications before
“Case Yellow”,

27 March 1940,
signed by defendant
Warlimont.

_ Pros. Ex. 1523 Extract of report X

from 2d Army, 2
April 1943, concern-
ing recommenda-
tions for changes
and supplements to
pamphlet “Combat
directives for anti-
bands warfare in
the east.”

Pros. Ex. 56 Letter signed by de- X

fendant Warlimont
transmitting the
Commissar Order,
“Directives for the
treatment of politi-
cal commissars” to
military leaders, 6
June 1941.

Pros. Ex. 1160 Memorandum from X

Army Group A, 12
January 1940, criti-
cising plans for the
western offensive,
and reply from the
Commander in
Chief of the Army,

16 January 1940.

Page

982 I Of
922

Ilf

852

|h

1054

«

837

Id

Document No.

NOKW-517.

t

NOKW-548.

NOKW-568-

ne

NOKW-579.

NOKW-586.

NOKW-621.

NOKW-629,

Exhibit No. Description Volume

Pros. Ex. 1157 Letter from General X

von Manstein, chief
of staff of Army
Group A, to Field
Marshal von Brau-
chitsch, Commander
in Chief of the
Army, 18 December
1939, concerning
western offensive.

Pros. Ex. 355 Extract from war XI

diary of Operations
Staff Ic Foreign Air
Forces West, 2 Oc-
tober 1944, concern-
ing conduct of sol-
diers in cases of
lynchings of Allied
airmen by the popu-
lation.

Pros. Ex. 1151 Army Group B direc- X

tive, 16 November
1939, concerning in-
vasion of Holland.

Pros. Ex. 740 Report by Sonderkom- X

mando 10a, 2 Au-
gust 1941, con-
cerning operation
against Jews in
Kodyma.

Pros. Ex. 741 Proclamation by de- X

fendant von Sal-
muth to the inhabi-
tants of Kodyma
issued on 1 August
1941, and extract
of report from SS
Sonderkommando
10a to Einsatz-
gruppe D, 3 August
1941, concerning
Kodyma affair.

Pros. Ex. 1161 Enclosure to instruc- X

tions concerning
war game “Yellow”,
and extract from
list of participants
distributed by Army
Group A on 20 Jan-
uary 1940.

Pros. Ex. 867 Activity report of Ein- X

satzgruppe D to 11th
Army Command, 9
October 1941.

Pasre

832

178

818

1217

1216

840

1255

719

Document No.

NOKW-631

NOKW-631.

NOKW-650.

NOKW-663.

NOKW-684

NOKW-688.

Exhibit No. Description Volume

Pros. Ex. 568_ Report from Ohlen- X

dorf, commander of
Einsatzgruppe D, to
11th Army Head-
quarters, 12 Febru-
ary 1942, concern-
ing confiscation of
watches and money
during anti-Jewish
actions.

Pros. Ex. 568 Report from Einsatz- XI

gruppe D, to 11th
Army, 12 February

1942, signed by Oh-
lendorf, concerning
seizure of watches
and rubles.

Pros. Ex. 738 Report from XXX X

Army Corps to 11th
Army, 2 August
1941, concerning op-
erations against
Jews in Kodyma.

Pros. Ex. 618 Letter of transmittal X

from Army High
Command (OKH)
to major subordi-
nate units in the
east, 28 October
1941, requesting im-
plementation of
“Reichenau Order”.

Pros. Ex. 719 Extracts from report XI

of Secret Field Po-
lice Group 703 to
counterintelligence
officer, 3d Panzer
Army, 24 November

1943, concerning es-
pionage activity and
allocation of chil-
dren to work in
Reich.

Pros. Ex. 608 Order of Panzer X

Group 3, 9 Septem-
ber 1941, concern-
ing the treatment of
partisans and parti-
san followers.

Page

1259

308

1215

1214

275

1153

720

bl

Document No.

NOKW-711.

Exhibit No.
Pros. Ex. 692

NOKW-1076 Pros. Ex. 57_

NOKW-1165 Pros. Ex. 81

12lf

121 !

NOKW-1178.

Pros. Ex. 694

NOKW-1295 Pros. Ex. 565.

NOKW-1300 Pros. Ex. 564.

.181 1

NOKW-1316 Pros. Ex. 666.

Description Volume

Extract from supple- X
ment to war diary
of 3d Panzer Army,
August 1941-Janu-
ary 1942, concern-
ing execution of
Partisans and PW’s.

The Commissar Order X
with distribution -v
list and covering let-
ter by General von
Brauchitsch, Com-
mander in Chief of
the Army, 8 June
1941, containing
supplements to the
order.

Report by SS Ober- X
gruppenf uehrer
Jeckeln, 1 August

1941, addressed to
Himmler, defendant
von Roques, and
others, concerning
mopping-up opera-
tions.

Teletyped report from X
17th Army to 11th
Army, 15 January

1942, concerning
shootings of parti-
sans.

Extract of order of XI
11th Army Com-
mand, 3 January
1942, signed by de-
fendant Woehler,
concerning opera-
tional strategy in
the east.

Extract of teletype XI
from Army Group
South to 11th Army,

22 December 1941,
concerning dissemi-
nation of Fuehrer
orders.

Extract from war X
diary of 18th Army,

2 July 1941, con-
cerning reprisal ac-
tion against Rus-
sians in Riga.

Page

1152

1055

1251

1156

307

310

1154

721

Document No.

NOKW-1449

Exhibit No.

Description

Volume

Page

NOKW-1531.

NOKW-1531

NOKW-1569.

NOKW-1570

NOKW-1573.

NOKW-1578.

Pros. Ex. 95 Radio message from

61st Inf. Div. to
18th Army, 26 Oc-
tober 1941, concern-
ing the shooting of
commissars.

Pros. Ex. 587 Letter from defendant

von Kuechler, to
generals under his
command, 22 July
1940, concerning
Russo-German rela-
tions.

Pros. Ex. 587 Extract of letter from

commander of Army
Rear Area 550, 20
August 1940, incor-
porating copy of let-
ter from commander
in chief of 18 th
Army, 22 July 1940,
containing direc-
tives concerning eth-
nic struggle in the
east.

Pros. Ex. 72 Radio message from X

269th Infantry Di-
vision to XLI Army
Corps, 9 July 1941,
concerning liquida-
tion of Politruks.

Pros. Ex. 73 Radio message from X

XLI Army Corps to
Panzer Group 4, 9
July 1941, concern-
ing liquidation of
Politruks.

Pros. Ex. 883 Extract from activ- X

ity report, 14 No-
vember 1941, from
Orts komman dantu r
1/853 to Comman-
der Army Rear
Area 553.

Pros. Ex. 668 Extract from war X

diary of 121st In-
fantry Division, 7
October 1941, re-
porting reprisal ex-
ecutions.

1085 I

954

1207 |

jl

1087

1087

I v

1258

1155 1

I

722

Document No. Exhibit No.

NOKW-1580 I-’ros. Ex. 670

NOKYV-1605 Pros. Ex. 272.

NOKW-1615 Pros. Ex. 267.

NOKW-1653 Pros. Ex. 1214.

NOKW-1674 Pros. Ex. 74.

Description Volume Page

Extract from activity X 1155

report of XXVIII
Army Corps, 3 No-
vember 1941, con-
cerning reprisal ex-
ecutions.

Excerpt from “Ten- XI 31

day report” from
Rear Area Army
Group South (com-
manded by defend-
ant von Roques), to
the High Command
of the Army, 20 De-
cember 1941, con-
cerning PW deaths
in transit camps ;
and remarks of PW
district commander,

21 December 1941,
on the plan con-
cerning the release
of Ukrainian pris-
oners of war.

Teletype from 24th XI 30

Division to com-
mander, Rear Area
Army Group South,

15 October 1941,
initialed by von
Roques, concerning
evacuation of PW’s.
(Photographic re-
production appears
in Section VIII.)

Extracts from activ- X 964

ity report and war
diary, 1 February-
19 June 1941, of
“Sector Staff East
Prussia” (later re-
designated “Army
Group North”) com-
manded by defend-
ant von Leeb.

Radio message from X 1088

Panzer Group 4 to
Army Group North,

10 July 1941, re-
porting liquidation
of commissars.

723

Document No.

NOKW-1727.

NOKW-1737.

NOKW-1744.

NOKW-1878.

NOKW-1881

NOKW-1903.

Exhibit No. Description Volume Page

Pros. Ex. 896 Extract from activity XI 311

report from Orts-
kommandantur Y ev-
patoriya to com-
mander of Army
Rear Area 553, 21
December 1941, con-
cerning the collec-
tion and storage of
property of “Reset-
tled” Jews.

Pros. Ex. 126 Covering letter from XI 86

High Command of
the Army, 21 Octo-
ber 1942, distribut-
ing Commando Or-
der to units in the
east.

Pros. Ex. 1197 Order from Comman- X 957

der in Chief of the
Army, 6 September
1940, concerning
transfer of units to
the east.

Pros. Ex. 42 Extracts from hand- X 247

book for German
general staff service
in wartime.

Pros. Ex. 913 Extract from activity XI 312

report of Ortskom-
mandantur Bakh-
chisarai to Army
Rear Area 553, 31
March 1942, con-
cerning burning
down of village.

Pros. Ex. 1506 Order of 17th Army, X 1183

25 November 1941,
directing the estab-
lishment of a con-
centration camp,
and enclosure, a
directive for the
treatment of the in-
mates.

724

Document No.

NOKW-1906.

NOKW-2022.

NOKW-2042.

NOKW-2072.

NOKW-2078.

NOKW-2079.

Exhibit No. Description Volume

Pros. Ex. 247 Letter from XXX XI

Army Corps (com-
manded by defend-
ant von Salmuth) to
subordinate units, 7
August 1941, tran-
scribing extracts
from Army High
Command Regula-
tions concerning
treatment of enemy
civilians and Rus-
sian Prisoners of
War, 25 July 1941.

Pros. Ex, 977 Directive from 281st X

Security Division to
Feldkommandatur
882, 24 March 1943,
concerning the
handing over of
gypsies and Jews to
the SD.

Pros. Ex. 1156 Directive from Naval X

War Staff to Group
West, 12 December
1939, concerning
support of army op-
erations, signed by
Schniewind.

Pros. Ex. 682 Report and order X

from 281st Security
Division, 23 June
1942, concerning
shooting and treat-
ment of gypsies.

Pros. Ex. 1150 Entry in war diary X

of Naval War Staff,

15 November 1939,
concerning new
Fuehrer directive.

Pros. Ex. 848 Directive by Himmler, X

21 May 1941, con-
cerning assignment
of Higher SS and
Police Leaders in
the army group
rear area.

Page

66

1194

830

1192

817

1242

725

Document No.

NOKW-2080

NOKW-2096.

NOKW-2100.

NOKW-2111

NOKW-2129.

NOKW-2181

Exhibit No. Description Volume Page

Pros. Ex. 847 Brauchitsch directive, X 1239

28 April 1941, con-
cerning “Commit-
ment of Security
Police and SD in
Units of the Army”

(The Wagner-Hey-
drich Agreement) ;
and letter of trans-
mittal, 2 May 1941,
from Sector Staff
Silesia (Army
Group South).

Pros. Ex. 88 Report from XXVIII X 1086

Army Corps to 18th
Army, 27 Septem-
ber 1941, concern-
ing the shooting of
a political commis-
sar.

Pros. Ex. 471 Order from XLIII XI 264

Army Corps head-
quarters to subordi-
nate units, 2 June
1943, concerning
drafting of able-
bodied population
for labor.

Pros. Ex. 296 Extract from report X 1192

on partisan activi-
ties by the com-
manding general of
Security Troops and
commander of Rear
Area Army Group
North, 1-15 June
1942, concerning the
shooting of gypsies.

Pros. Ex. 951 Extract from activity X 1257

report of 454th Se-
curity Division for
period from 1-10
October 1941.

Pros. Ex. 213 Extracts from war X 1160

diary of comman-
der of Army Rear
Area 580, Septem-
ber 1942, concern-
ing antipartisan
warfare.

726

k

Document No.

NOKW-2265.

NOKW-2266

NOKW-2268.

NOKW-2269.

Ill

NOKW-2276.

UK

NOKW-2311.

m l

NOKW-2336.

it i

Exhibit No. Deecription Volume

Pros. Ex. 1124 Extracts of war diary X

of Naval War Staff,
March 1940, con-
cerning “Weser Ex-
ercise”.

Pros. Ex. 1123 Directive from Naval X

War Staff, 12 March
1940, concerning
alternate landing
points in Norway.

Pros. Ex. 678 Extracts from X

XXVIII Corps ac-
tivity report and
correspondence for
period 7-26 Decem-
ber 1941, concern-
ing liquidation of
insane at Marka-
revskaja Asylum.

Pros. Ex. 1163 Directive of Naval X

War Staff to Naval
Group West, 24
January 1940, ini-
tialed by defendant
Schniewind.

Pros. Ex. 312 Extracts from war X

diary of comman-
der of Army Rear
Area 580, October
1942, concerning
execution of Red
army soldiers and
deportation of civil-
ians.

Pros. Ex. 1162 Extracts from war X

diary of the Naval
War Staff from 1-
31 January 1940,
concerning opera-
tion “Yellow”.

Pros. Ex. 491 Supplement to activ- XI

ity report of 3d
Panzer Army, 4
August 1943, con-
cerning labor allo-
cation of eastern ci-
vilian population.

Page

764

769

1196

839

1163

836

267

Document No. Exhibit No.

NOKW-2340 Pros. Ex. 484-

NOKW-2341 Pros. Ex. 444.

NOKW-2351 Pros. Ex. 458.

NOKW-2361 Pros. Ex. 749.

Description Volume Page

Order from 3d Panzer XI 266

Army to subordi-
nate units, 19 July
1943, concerning
drafting of eastern
workers for labor
in the Reich and
labor draft procla-
mation.

Report from comman- XI 261

der, Army Rear
Area 590, Group
VII, (Military Ad-
ministration) , to 3d
Panzer Army ; 29
November 1942,
concerning recruit-
ment and use of ci-
vilians for labor.

Administrative orders XI 263

from 263d Infantry
Division to Orts-
kommandanturen;

30 March, 1943, con-
cerning use of civil-
ians for building
fortifications.

Extracts from war X 1164
diary of commander
of Army Rear Area
580, October-No-
vember 1942, con-
cerning executions
of partisans and
other retaliatory
measures.

NOKW-2393 Pros. Ex. 440 Extract from month- XI 259

ly report of Econ-
omic Inspectorate
North for July 1942
concerning trans-
portation of civil-
ians to the Reich
for labor (Sauckel
Plan).

728

Document No.

NOKW-2406.

S I

NOKW-2449.

NOKW-2452.

NOKW-2460.

1

NOKW-2463.

9 |

NOKW-2501.

NOKW-2508.

Exhibit No. Description Volume

Pros. Ex. 541 Extract from situa- XI

tion report, 27 De-
cember 1944, from
Army Economy
Leader, 4th Army
concerning request
for foreign workers
for Army Group
Center (CinC Rein-
hardt), and use of
civilian labor for
field fortifications.

Pros. Ex. 1239 Order for preparation X

of deployment “Bar-
barossa” from XXX
Army Corps to sub-
ordinate units, 4
June 1941, signed
by defendant von
Salmuth.

Pros. Ex. 1206 Deployment directive X

“Barbarossa”, 5
February 1941, sent
by defendant von
Leeb to defendant
von Kuechler.

Pros. Ex. 436 Extracts from month- XI

ly report for May
1942 from Economic
Inspectorate North
to Army Group
Area North con-
cerning the dis-
patch of conscripted
labor to Reich.

Pros. Ex. 1179 Activity report of the X

veterinary officer of
the 50th Infantry
Division commanded
by Hollidt.

Pros. Ex. 696 Extract from 17th X

Army report,

M arch-August
1942, disclosing the
execution of civil-
ians as spy suspects.

Pros. Ex. 1182 Order, 19 February, X

20 March, 3 and 5
April 1941, from
Hollidt, concerning
plans for attack on
Greece.

Page

284

1000

971

256

910

1157

910

I

729

Document No. Exhibit No. Description Volume Page

NOKW-2510 Pros. Ex. 1226 Covering letter and X 987

combat directive
from Fortress Staff
Allenstein to subor-
dinate units, 11 May
1941, signed by de-
fendant Reinhardt.

NOKW-2523 Pros. Ex. 853 Copy of letter, 22 July X 1209

1941, from 11th
Army, signed in
draft by defendant
Woehler, concerning
photographs and re-
ports of executions.

NOKW-2531 Pros. Ex. 527 Report of Fortress XI 276

Engineer Staff 7, 6
March 1944, con-
cerning escape of
Russian workers.

NOKW-2538 Pros. Ex. 630 Orders to subordinate XI 63

units, 21 and 26 No-
vember 1941, signed
by defendant von
Salmuth, concern-
ing antipartisan
warfare ; and imple-
mentation instruc-
tions thereto dis-
tributed by subordi-
nate 72d Infantry
Division, 28 Novem-
ber 1941.

NOKW-2542 Pros. Ex. 1190 Extract from war X 916

diary of Naval War
Staff (section I),
concerning invasion
of Yugoslavia and
Greece, and the sub-
sequent division of
Yugoslavia.

NOKW-2554 Pros. Ex. 1183 Extracts from war X 914

diary of the Naval
War Staff (section
1), 7 and 24 March
1941, concerning the
invasion of Greece
and the U.S.S.R.

730

Document No. Exhibit No. Description Volume

NOKW-2555 Pros. Ex. 1185 Extracts from war X

diary of the Naval
War Staff (section
I), 26 March 1941,
concerning reports
for OKW in accord-
ance with “Marita”
Directive.

NOKW-2561 Pros. Ex. 747 Extract from war X

diary of the 17th
Army, 3 July 1942,
concerning liquida-
tion of partisans
and agents.

NOKW-2567 Pros. Ex. 1233 Assembly order for X

the Barbarossa at-
tack by Fortress
Staff Allenstein, 20
May 1941, and or-
der, 7 June 1941,
signed by defendant
Reinhardt.

NOKW-2570 Pros. Ex. 492 Extracts from war XI

diary, 13 July-18
September 1943,
and appendix to war
diary, XLIII Army
Corps, concerning
labor allocation of
Russian civilian
population.

NOKW-2573 Pros. Ex. 806 Regulation from XI

Armed Forces Le-
gal Department, 24
September 1942,
signed by defendant
Lehmann, concern-
ing execution of
“Night and Fog”
Decree.

NOKW-2576 Pros. Ex. 823 Teletype, 1 July 1944, XI

from Armed Forces
Operations Staff/

Qu.2 to Armed
Forces Legal De-
partment, signed by
defendant Warli-
mont, requesting
draft of order con-
cerning treatment
of “enemy terror-
ists”.

8

Paste

916

1158

995

268

207

235

893964 - 51 -

731

Document No,

NOKW-2577.

Exhibit No.

Volume

Description

Page

_ Pros. Ex. 825 Memorandum by the XI

defendant Warli-
mont, 30 July 1944,
concerning draft of
Terror and Sabo-
tage Decree sub-
mitted by Armed
Forces Legal De-
partment.

NOKW-2579 Pros. Ex. 815 Covering letter 10 No- XI

vember 1943, and
directive from
Armed Forces Le-
gal Department, 6
November 1943,
concerning treat-
ment of “Night and
Fog” prisoners.

NOKW-2581 Pros. Ex. 819 Letter from Ministry XI

of Justice to Armed
Forces Legal De-
partment, 26 April
1944, concerning
ashes of executed
“Night and Fog”
prisoners.

NOKW-2584 Pros. Ex. 1084 An “Estimate of the X

Situation compiled
by Working Staff
Rundstedt on 7 May
1939, and memoran-
dum from Working
Staff Rundstedt to
Army Groups 3 and
5, and XVI Army
Corps, 23 May 1939.

NOKW-2586 Pros. Ex. 1148 Letter from Brau- X

chitsch, 29 October
1939, enclosing de-
ployment directive
“Yellow”, and cover
letter from Army
Group B, 5 Novem-
ber 1939, distribut-
ing this directive.

NOKW-2588 Pros. Ex. 1555 List distributed by X

General Haider, 2
February 1940, of
army officers par-
ticipating in opera-
tional planning and
measures.

237

210

212

661

811

847

732

Document No.

NOKW-2599-

Exhibit No.

Pros. Ex. 697—

NOKW-2625 Pros. Ex. 1177-

NOKW-2630 Pros. Ex. 1019_

NOKW-2637 Pros. Ex. 523_

NOKW-2648 Pros. Ex. 528_

NOKW-2657 Pros. Ex. 1379_

Description Volume Page

Extract from evening X 1169

reports of subordi-
nate units of 4th
Panzer Army, 2
August 1942, re-
garding shooting of
male civilians over

15 years of age.

Letter by Warlimont, X 906

16 January 1941,
concerning the pas-
sage of the German
army through Bul-
garia, and letter of
transmittal of time-
table “Marita”, 19
February 1941.

Article on “Condor X 493

Legion” published
in “Voelkischer
Beobachter”, 31
May 1939.

Directives issued by XI 281

3d Panzer Army in
January, April and
May 1944, concern-
ing forced labor of
civilians.

Report from 3d Pan- XI 280

zer Army to High
Command Army
Group Center, 23
March 1944, con-
cerning evacuation
of Vitebsk and de-
portation of inhabi-
tants for labor al-
location.

Covering letter from X 656

High Command of
the Navy to Group
Command East, 28
April 1939, signed
by Schniewind en-
closing directive for
the preparation of
operations against
Danzig.

733

Document No. Exhibit No. Description Volume

NOKW-2670 Pros. Ex. 1209 Combat Directive, 15 X

February 1941, for
Operation “ Barba-
rossa” from Army
Group A to Army
Group B (chief of
staff, defendant, von
Salmuth), and cir-
cular letter from
General Haider, 21
March 1941, con-
cerning conference
on “Barbarossa”.

NOKW-2672 Pros. Ex. 598 Extract from activ- X

ity report 2 of Pan-
zer Group 3, Janu-
ary-July 1941, con-
cerning special
treatment of com-
missars.

NOKW-2672 Pros. Ex. 598 Extracts from activ- X

ity report 2 of Pan-
zer Group 3, Jan-
ary-July 1941, con-
cerning treatment
of commissars, par-
tisans, etc.

NOKW-2704 Pros. Ex. 1211 Deployment directive X

“Barbarossa”, 12
March 1941, signed
by defendant Hoth
and transmitted to
subordinate units.

NOKW-2705 Pros. Ex. 1202 Draft of deployment X

directive “Barba-
rossa”, 22 January
1941, issued by the
High Command of
the Army.

NOKW-2706 Pros. Ex. 1229 Order from Sector X

Staff East Prussia
to subordinate units,

17 May 1941, con-
cerning prepara-
tions for “Barba-
rossa”, signed by
defendant von Leeb.

NOKW-2708 Pros. Ex. 41 Extracts from Ger- X

man Army Manual
90, “Supply of the
Field Army”, June
1938.

Pag* &

973 I®

'SOI

1085

1132

D k °

976

989

*

234

734

Document No. Exhibit No. Description Volume Page

NOKW-2710 Pros. Ex. 1394 Report for war diary X 842

of the XV Corps,
commanded by
Hoth, 30 January
1940, concerning ob-
jectives of units in
Case “Yellow”.

NOKW-2713 Pros. Ex. 1396 Order of XV Army X 860

Corps, 16 March
1940, for the attack
on Belgium, signed
by defendant Hoth.

NOKW-2720 Pros. Ex. 1393 Two enclosures to the X 833

war diary of the
XV Corps com-
manded by Hoth :

(1) Notes on the
preparations of XV
Army Corps for the
operations in the
West, signed by
Hoth; (2) Letter
from Hoth to von
Kluge on the same
subject.

NOKW-2726 Pros. Ex. 1401 Letter from defend- X 980

ant Schniewind to
High Command of
the Armed Forces,

22 April 1941, con-
cerning “Barba-
rossa”.

NOKW-2730 Pros. Ex. 1403 Letter from defend- X 985

ant Schniewind, 9
May 1941, to Com-
manders in Chief of
the Army, and of
the Air Force, and
Department Nation-
al Defense, concern-
ing Caucasian oil
region.

NOKW-2731 Pros. Ex. 1383 Letter from High X 693

Command of the
Navy to the German
foreign office, 25
July 1939, concern-
ing planned opera-
tions of the Navy
in “Case White”,
signed by Schnie-
wind.

Document No-

NOKW-2761-

Exhibit No.
Pros. Ex. 1385_

Description

Volume P&ffe

NOKW-2822 Pros. Ex. 1389

NOKW-2879.

Directive from Com- X
mander in Chief of
the Navy to naval
commander, 5 Au-
gust 1939, concern-
ing naval measures
in connection with
“Case White”,
signed by Schnie-
wind.

Extracts from war X
diary of I Army
Corps for August
1939.

Pros. Ex. 1380 Note and two enclo- X

sures concerning
conference of 9 May
1939, attended by
Schniewind.

NOKW-2882 Pros. Ex. 1382_

NOKW-2883 Pros. Ex. 1372_

NOKW-2896 Pros. Ex. 1434_

NOKW-2906 Pros. Ex. 1269

Letter from High
Command of the
Navy to Naval
Group Command
East, 1 July 1939,
concerning “Case
White”, signed by
Schniewind.

Directives from Com-
mander in Chief of
the Navy, 23 No-
vember 1938, con-
cerning occupation
of Memel, initialed
by Schniewind.

Extract from Hitler’s
speech to military
leaders on his birth-
day, 20 April 1936;
published in “Voel-
kischer Beobachter”,
21 April 1936.

Memorandum, 26 No-
vember 1942, signed
by defendant War-
limont, concerning
the destruction of
the Commando Or-
der, and draft in-
struction to this ef-
fect, 28 November
1942.

XI

696

706

669

686

642

487

90

736

Document No. Exhibit No. Description Volume Pb#p

NOKW-2909 Pros. Ex. 1320 Extracts from enclo- X 1200

sures, 1-31 March
1942, to 10-day re-
port of rear area
Army Group South
to OKH, concerning
activities of Secret
Field Police and SD.

NOKW-2916 Pros. Ex. 1305 Extracts from report X 1157

of 17 th Army, April-
July 1942, concern-
ing the execution of
civilians by secret
field police and the
execution of pris-
oners in Gorlovka
concentration camp.

NOKW-2961 Pros. Ex. 1306 Keitel order concern- X 1166

ing antiband war-
fare, 16 December
1942; letter of
transmittal and dis-
tribution list, 29
December 1942.

NOKW-2963 Pros. Ex. 1303 Directive from com- X 1219

manding general of
the XXX Corps, de-
fendant von Sal-
muth, 2 August
1941, concerning
participation of sol-
diers in operations
against Jews and
Communists.

NOKW-2981 Pros. Ex. 1593 Extracts from sum- XI 315

maries on bands’ ac-
tivities in III Pan-
zer Corps area and
reports from III
Panzer Corps to 8th
Army, 15 October
and 7 November
1943, on same sub-
ject.

NOKW-3059 Pros. Ex. 1435 Extracts from a spe- X 495

cial edition of “Die
Wehrmacht”, a pe-
riodical published
by the OKW, con-
cerning the Condor
Legion.

787

Document No. Exhibit No. Description Volume Page

NOKW-3060 Pros. Ex. 1462 Order by General XI 179

Schmidt, 11 Decem-
ber 1944, transmit-
ting order of chief
OKW of 9 July
1944, concerning
oral instructions to
be given to soldiers
not to protect ene-
my “terror” flyers
from the German
populace.

NOKW-3115 Pros. Ex. 1439 Extract from “Voel- X 515

kischer Beobach-
ter”, 6 February
1938, concerning the
retirement of von
Blomberg and von
Fritsch.

NOKW-3115 Pros. Ex. 1439 Extract from “Voel- X 516

kischer Beobach-
ter”, 6 February
1938, on Hitler tak-
ing over the com-
mand of the Ger-
man Armed Forces.

NOKW-3129 Pros. Ex. 1432 Extracts from X 477

speeches by General
Liebmann and von
Blomberg, 15 Octo-
ber 1935, commem-
orating the 125th
anniversary of the
War Academy; pub-
lished in “Berliner
Boersenzeitung”, 16
October 1935.

NOKW-3131 Pros. Ex. 1431 Extracts from speech X 483

by the chief of the
general staff, Lieu-
tenant General Beck,

15 October 1935,
commemorating the
125 th anniversary
of the War Acad-
emy ; published in
“Berliner Boersen-
zeitung”, 16 Octo-
ber 1935.

738

Document No.

NOKW-3132

Exhibit No.

. Pros. Ex. 1419

Description

Volume

NOKW-3132.

NOKW-3133.

NOKW-3140.

NOKW-3140.

NOKW-3140.

NOKW-3140.

NOKW-3234.

NOKW-3238.

Pros. Ex. 1419

Pros, Ex. 1429

Pros. Ex. 1359

Pros. Ex. 1359

Pros. Ex. 1359

Pros. Ex. 1359

Pros. Ex. 1609

Pros. Ex. 1606

Extracts from “Voel-
kischer Beobach-
ter” of 2 and 6 F eb-
ruary 1933, concern-
ing relations be-
tween the armed
forces and Hitler.

Extract from “Voel-
kischer Beobach-
ter”, 3 August 1934,
reporting the taking
of oath of allegiance
to Hitler by armed
forces.

Extracts from article
by Reich Minister
General von Blom-
berg on “The Ger-
man Conscription”,
published in the
“Voelkischer Beo-
bachter”, 20 March
1935.

Extracts from diary
of General Haider,
August 1939.

Extracts from diary
of General Haider,
December 1939-
March 1940.

Extracts from diary
of General Haider,
June 1940 - March
1941, concerning
preparations for
war against Russia.

Extract from the
diary of General
Haider, September-
November 1941.

Extracts from activ-
ity report of (SS)
Sonderkommando
XIa for the period
18 to 31 August

1941.

Report from Einsatz-
gruppe D, to 11th
Army, 12 February

1942, signed by Oh-
lendorf, concerning
seized watches.

X

X

X

X

X

X

X

X

XI

Page

468

473

473

709

843

942

1195

1252

309

739

Document No.

NOKW-3240.

NOKW-3292.

NOKW-3346.

NOKW-3358

NOKW-3411

Exhibit No. Description Volume

Pros. Ex. 1635 Telegram from Neu- XI

bacher, German
Special Plenipoten-
tiary Southeast, to
the Reich Foreign
Minister, 6 June
1944, concerning ap-
plication of Com-
mando Order to
war correspondents
as ordered by de-
fendant Warlimont,
and foreign office
memorandum there-
to, 1 June 1944.

Pros. Ex. 1556 Covering letter from X

18th Army, 28 Sep-
tember 1941, trans-
mitting Keitel or-
der, 12 September
1941, concerning
Jews in the occupied
territories.

Pros. Ex. 1510 Extract from war X

diary of 17th Army,

27 February 1942,
reporting execution
of hostages.

Pros. Rebuttal Teletype from 3d Pan- XI

Ex. 40 zer Army (comman-

der, defendant Rein-
hardt) to subordi-
nate units, 19 No-
vember 1942, con-
cerning execution of
Commando Order.

Pros. Rebuttal Letter of transmittal X

Ex. 14 and “Reichenau Or-

der” of 10 October
1941, distributed by
XXVIII Army Corps
of the 18th Army,
commanded by de-
fendant von Kuech-
ler. ( Photographic
reproduction ap-
pears in Section
VIII.)

Page

97

1210

1156

89

1211

740

Document No. Exhibit No. Description Volume Pace

NOKW-3422-.. Proe. Ex. 1602 Extract of teletype X !2M

from defendant
Woehler to army
group, southern
Ukraine, 31 May
1944, concerning
treatment of Jews.

NOKW-3437 Pros. Ex. 1601 Extract from 17th X 1238

Army Corps Order
No. 1, 23 July 1940,
initialed by defend-
ant Woehler.

NOKW-3438 Pros. Ex. 1599

NOKW-3442 Pros. Ex. 1600.

NOKW-3453 Pros. Ex. 1605

NOKW-3475 Pros. Rebuttal

Ex. 23

NOKW-3482 Pros. Rebuttal

Ex. 46

Extracts from war XI 306

diary of 4th Army,

1 January - 31
March 1943, con-
cerning devastation
orders.

Order from Army XI 313

Group Center, 11
February 1943,
signed by Woehler,
concerning destruc-
tions in the area in
front of the Buffalo
line.

Correspondence and X 1244

reports concerning
assignment and ac-
tivity of Einsatz-
gruppe D and sub-
units, July 1941 to
January 1942.

Orders from Army XI 270

Group North to
Corps Command
Tiemann, 19 Sep-
tember 1943, and 30
September 1943,
and enclosed order
from High Com-
mand of the Army;

12 September 1943,
concerning procure-
ment of labor.

Extract from war XI 88

diary of 3d Panzer
Army (commander,
defendant Rein-
hardt), 18 Novem-
ber 1942, concern-
ing execution of the
Commando Order.

741

Document No. Exhibit No. Description Volume

NOKW-3485 Pros. Rebuttal Special instructions X

Ex. 9 for Case Barbaros-

sa, issued by OKW
on 19 May 1941,
with enclosed “Di-
rective for the con-
duct of the troops
in Russia”.

NOKW-3485 Pros. Rebuttal Extract from directive XI

Ex. 9 of OKW, 8 May

1941, concerning
economic organiza-
tion to be set up in
“Barbarossa” area.

NOKW-3520 Pros. Rebuttal Affidavit of Theodor X

Ex. 106 Krancke, 16 June

1948.

NOKW-3531 Pros. Rebuttal Extract from order by XI

Ex. 33 commanding gener-

al of Rear Area
Army Group North,

22 June 1942, con-
cerning subordina-
tion of commanders
of prisoners of war,
and “Service Regu-
lations for the Com-
manders of PW’s
in the Operational
Area.”

386-PS Pros. Ex. 1033 Notes on Hitler con- X

ference of 5 Novem-
ber 1937.

388-PS Pros. Ex. 1048 Extracts from file of X

documents on “Case
Green”, May- Sep-
tember 1938, kept
by Hitler's Adjutant
Schmundt.

440-PS Pros. Ex. 1152 Hitler directive, X

signed by Keitel, 20
November 1939, con-
cerning plans and
preparations for in-
vasion of Holland.

444-PS Pros. Ex. 1173 Fuehrer Directive X

No. 18 to army,
navy, air force, and
OKW, 12 November
1940, concerning
future prosecution
of the war.

Pane j ^

;>90

fli^

255

777

505

600

820

897

7 42

Document No.

Exhibit No. Description Volume Page

446-PS.

448-PS.

498-PS.

503-PS

506— PS.

510-PS.

523-PS

Pros. Ex. 1200.

Pros. Ex. 1176

Pros. Ex. 124.

Pros. Ex. 125.

Pros. Ex. 158.

Pros. Ex. 154

Pros. Ex. 123.

_ Directive No. 21 for
Case Barbarossa, 18
December 1940,
signed by Hitler,
initialed by Keitel,
Jodi, and Warli-
mont.

_ Fuehrer Directive No.
22, 11 January 1941,
concerning Mediter-
ranean campaign,
and letter, 29 Janu-
ary 1941, giving
code names for
measures in Direc-
tive No. 22, signed
by defendant War-
limont.

_ The “Commando Or-
der”, 18 October
1942, signed by Hit-
ler with a note by
the defendant War-
limont concerning
distribution of or-
der.

_ Letter from OKW, 19
October 1942, trans-
mitting supplement
to Commando Or-
der signed by Hit-
ler.

_ Draft of a reply from
defendant Warli-
mont to Armed
Forces Legal De-
partment, 22 June
1944, concerning
application of Com-
mando Order.

_ Teletype from defend-
ant Warlimont to
Commander in
Chief Southeast, 26
February 1944, con-
cerning landing of
British commandos
in Dodecanese
Islands.

Draft of Commando
Order with hand-
written comments
by Jodi, October
1942.

X

X

XI

XI

XI

XI

XI

958

903

73

76

100

94

85

743

Document No.

530-PS

Exhibit No.
Pros. Ex. 160_

Volume

531-PS.

537-PS.

551-PS.

665-PS.

669-PS.

671-PS.

711-PS.

728-PS.

Description

Draft of an order, 24
June 1944, signed
by defendant War-
limont, concerning
treatment of mem-
bers of commando
units in Normandy.

Pros. Ex. 159 Memorandum on

treatment of mem-
bers of commando
units in Normandy,
23 June 1944, signed
by defendant War-
limont.

Pros. Ex. 166 Draft of OKW Order,

30 July 1944, con-
cerning treatment
of members of mili-
tary missions cap-
tured with partisan
bands.

Pros. Ex. 162 OKW directive on ap-

plication of Com-
mando Order in
area of Commander
in Chief West, 25
June 1944, initialed
by defendant Warli-
mont.

Pros. Ex. 800 See NG-077.

Pros. Ex. 798 Keitel letter of 12 De-

cember 1941, trans-
mitting the first im-
plementation decree
to the “Night and
Fog ,, Decree.

Pros. Ex. 799 Letter from Keitel to

Reich Minister of
Justice, 12 Decem-
ber 1941, transmit-
ting “Night and
Fog” Decree.

Pros. Ex. 824 Memorandum by de-

fendant Warlimont,
1 July 1944, con-
cerning execution of
terrorists in Den-
mark.

Pros. Ex. 1638 Draft of letter from

the foreign office to
Chief OKW, 20 June
1944, concerning
treatment of enemy
“terror” flyers.

XI

XI

XI

XI

XI

XI

XI

XI

XI

Page

103

101

125

106

200

198

199

236

175

744

Document No.

734-PS

735-PS-

789-PS-

798-PS.

II

835-PS

I

If!

836-PS.

865— PS.

Exhibit No. Description Volume

Pros. Ex. 348 Draft of letter from XI

OKW/Armed
Forces Operations
Staff to the foreign
office, 14 June 1944,
concerning treat-
ment of enemy “ter-
ror” flyers.

Pros. Ex. 346 Minutes of meeting, 6 XI

June 1944, concern-
ing treatment of
enemy flyers, signed
by Warlimont.

Pros. Ex. 1153 Record of Hitler's X

speech at the con-
ference on 23 No-
vember 1939.

Pros. Ex. 1101 Fuehrer's speech to X

the commanders in
chief, 22 August
1939.

Pros. Ex. 831 Letter from the de- XI

fendant Lehmann
to the German Ar-
mistice Commission,

2 September 1944,
concerning the
handing over of al-
leged saboteurs and
political prisoners
to the Security Po-
lice and Security
Service.

Pros. Ex. 804 Draft, undated, by XI

Armed Forces Le-
gal Department of
a second order for
the execution of the
“Night and Fog”
Decree.

Pros. Ex. 589 Fuehrer decree, 20 X

April 1941, appoint-
ing Alfred Rosen-
berg Commissioner
for the central con-
trol of questions
concerning the east
European territory,
and subsequent cor-
respondence be-
tween Lammers,

Keitel and Rosen-
berg.

Payee

174

169

828

698

243

202

978

745

Document No. Exhibit No. Description Volume Page

873- PS Pros. Ex. 1220. Minutes of conference X 984

with chief of De-
partment National
Defense on 30 April
1941, concerning
“Barbarossa”.

877-PS Pros. Ex. 53 Letter from High X 1059

Command of the
Army to High Com-
mand of the Armed
Forces, attention of
defendant Warli-
mont, 6 May 1941,
transmitting drafts
of Barbarossa and
Commissar Orders.

877-PS Pros. Ex. 53 Army High Command X 1124

draft of Barbarossa
order, May 1941, ad-
dressed to army and
army group com-
manders.

883- PS Pros. Ex. 1234 Letter from Depart- X 998

ment National De-
fense, 22 May 1941,
concerning confer-
ence with Finland.

884- PS Pros. Ex. 55 Memorandum signed X 1062

by defendant War-
limont,12 May 1941,
concerning draft of
Commissar Order.

885- PS Pros. Ex. 1236 Covering letter and X 1002

timetable Barbaros-
sa, 5 June 1941, dis-
tributed by High
Command of the
Armed Forces to
three service
branches and OKW
agencies.

888-PS Pros. Ex. 1248 Letter from prisoner X 1007

of war department,

OKW, 16 June 1941,
concerning PW mat-
ters for Case Bar-
barossa.

1014-PS Pros. Ex. 1102 Fuehrer speech (sec- X 702

ond), 22 August
1939.

74G

Document No.

1263-PS.

1279-PS

1471-PS

1541-PS.

1676-PS.

1733-PS.

Exhibit No. Description Volume Pa*je

Pros. Ex. 1 22_ „ Two drafts of memo- XI 80

randum on Com-
mando Order, 14
and 15 October
1942, signed by
Warlimont, trans-
mitting draft of
Commando Order
and teletype mes-
sage from Canaris’
office, 10 October
1942, on same sub-
ject.

Pros. Ex. 165 Memorandum of 22 XI 123

July 1944, initialed
by Warlimont, con-
cerning treatment of
members of foreign
military missions
captured with par-
tisan bands.

Pros. Ex. 54 Draft of Commissar X 1060

Order, undated, pre-
pared according to
directives of 31
March 1941, and
comment by defend-
ant Lehmann, 8 May
1941.

Pros. Ex. 1175 Fuehrer Directive No. X 899

20, 13 December

1940, concerning op-
eration Marita.

Pros. Ex. 341 Article entitled “A XI 166

Word on the Enemy
Air Terror”, by
Reich Minister Dr.

Goebbels, published
in the “Voelkischer
Beobachter” Mu-
nich, 28 and 29 May
1944.

Pros. Ex. 797 “Night and Fog” De- XI 196

cree of Hitler,
signed by Keitel, 7
December 1941,
concerning meas-
ures to be taken
against persons of-
fering resistance to
German occupation.

893964—51 49

747

Document No.

1746-PS

1780-PS

1780-PS

1796-PS.

1796-PS

1809-PS

1932-PS.

2288-PS.

Exhibit No. Description Volume

Pros. Ex. 1180 Report of Fuehrer X

conference on Yugo-
slavia, 27 March
1941, and Fuehrer
Directive No. 25, 27
March 1941, plus
special instructions
concerning Direc-
tive No. 25 issued
by the OKW, 29
March 1941.

Pros. Ex. 1034 Extracts from diary X

of General Jodi,
February - March
1938.

Pros. Ex. 1034 Extracts from diary X

of General Jodi,
1937-1938.

Pros. Ex. 1078 Notes for OKW War X

Diary, 7 April 1941,
for period March-
September 1939,
concerning attack
on Poland.

917

586

593

707

Pros. Ex. 1078 Notes for OKW War X 802

Diary, 7 April 1941,
for period Septem-
ber 1939-April 1940,
concerning attack
on Lowlands.

Pros. Ex. 1170A Extracts from Gen- X 760

eral Jodi’s Diary
(1940).

Pros. Ex. 811 Decree from SS Eco- XI 208

nomic and Admin-
istrative Main Of-
fice to commanders
of concentration
camps, 7 June 1943,
concerning “Night
and Fog” prisoners.

Pros. Ex. 1006 Extracts from Hitler’s X 476

Reichstag speech, 21
May 1935, published
in “Voelkischer Beo-
bachter”, 22 May
1935.

748

Document No. Exhibit No. Description Volume

2329-PS Pros. Ex. 1147 Order signed by Brau- X

chitsch, CinC Army,

7 October and 15
November 1939,
concerning prepara-
tions for invasion of
Lowlands.

2360-PS Pros. Ex. 1058 Extract from Hitler’s X

Reichstag speech, 30
January 1939, pub-
lished in “Voelkis-
cher Beobachter”,

31 January 1939.

2557-PS Pros. Ex. 360 Sworn statement of XI

Major Thomas R.

Sealy, 2 November
1945, concerning ill-
treatment and kill-
ing of American air-
men by German ci-
vilians.

2719-PS Pros. Ex. 1171 Decree issued by State X

Secretary of the
Foreign Office to
German Diplomatic
Missions, 28 April
1938.

2884-PS Pros. Ex. 113 Affidavit of Walter X

Warlimont, 14 No-
vember 1945, con-
cerning the treat-
ment of Soviet po-
litical functionaries
and commissars.

3032- PS Pros. Ex. 1251 Affidavit of defendant X

Walter Warlimont,

21 November 1945,
concerning Hitler’s
plans for attacking
the U.S.S.R.

3571-PS Pros. Ex. 1063 Article from the Ger- X

man magazine
“Wehrmacht”, 29
March 1939, on the
military occupation
of Czechoslovakia,
as reproduced in a
report by the acting
United States Mili-
tary Attache in Ber-
lin.

Pa«e

808

593

181

896

1064

955

616

749

Document No.

3798-PS

4005-PS.

R-100.

RF-388.

TC-27

TC-31

Exhibit No. Description Volume Page

Pros. Ex. 1451 Extracts from the X 520

joint statement of
Field Marshal von
Manstein, Field
Marshal von Brau-
chitsch, General
Haider, General
Warlimont, and
General Westphal,
signed in Nuern-
berg on 19 Decem-
ber 1945.

Pros. Ex. 1370 Extract from a speech X 588

by Gauleiter Rainer,

11 March 1942, men-
tioning the partici-
pation of General
Keitel and defend-
ant Sperrle in the
Hitler - Schuschnigg
conversations of 12
February 1938.

Pros. Ex. 1077 Information given to X 647

the Commander in
Chief of the Army
by the Fuehrer on
25 March 1939.

Pros. Ex. 802 Letter from Armed XI 213

Forces Legal De-
partment to foreign
office, 17 February
1942, signed by de-
fendant Lehmann,
concerning Belgian
“Night and Fog”
prisoners.

Pros. Ex. 1047 Text of diplomatic X 591

note from Czecho-
slovak Minister in
London to the Brit-
ish Secretary of
State for Foreign
Affairs, 12 March
1938.

Pros. Ex. 1115 Memorandum handed X 749

to the Norwegian
Foreign Minister by
the German Minis-
ter in Oslo on 2 Sep-
tember 1939.

750

Document No.

TC-36

General Defense 79_

Von Kuechler 60

Von Kuechler 61

Von Kuechler 119—

Von Leeb 5.

Von Leeb 33

Exhibit No. Description Volume

Pros. Ex. 1141 Statement given to the X

King of the Bel-
gians on 28 August
1939, by the Ger-
man ambassador.

Defense Ex. 79 Supplement to expert XI

legal opinion by
Professor Rein-
hart Maurach
(University of Mu-
nich), submitted on
behalf of the de-
fense in Case No.

12 .

Von Kuechler Hitler order, 29 June X

Ex. 60 1941, concerning the

control of economy
in the newly occu-
pied eastern terri-
tories.

Von Kuechler Affidavit of Hans X

Ex. 61 Steenbock, 26 May

1948.

Von Kuechler Decree of the Fuehrer XI

Ex. 119 30 September 1942,

on the execution of
the decree concern-
ing a Plenipoten-
tiary General for
the allocation of la-
bor.

Von Leeb Ex. 38 Letter from Field X

Marshal Ritter von*
Leeb to Herr and
Frau von Schlenk-
Barnsdorf, 13 Octo-
ber 1939.

Von Leeb Ex. 42 — Letter from defend- X
ant von Leeb to the
Commander in
Chief of the Army
Brauchitsch, 31 Oc-
tober 1939, concern-
ing political and
military state of af-
fairs.

Page

800

44

320

321
260

863

872

751

Document No. Exhibit No. Description Volume

Von Leeb 39a_ Von Leeb Ex. 39 Letter from Army X

Group C to chief of
staff, Army Group
B, defendant von
Salmuth, 11 Octo-
ber 1939, transmit-
ting memorandum
by defendant von
Leeb to General von
Brauchitsch, con-
cerning an attack
on France and Eng-
land by violating
the neutrality of
Holland, Belgium,
and Luxembourg.

Lehmann 217 Lehmann Ex. 89 Affidavit of Dr. Erich X

Lattmann, 15 May
1948.

Lehmann 301 Lehmann Ex. 268 Affidavit of Dr. Wer- XI

ner Huelle dated 29
February 1948.

Lehmann 316 Lehmann Ex. 283 Letter from French XI

delegation to the
German Armistice
Commission, 3 Au-
gust 1944, concern-
ing investigation of
the conditions of
French “political
prisoners.”

Reinecke 120 Reinecke Ex. 120__. Affidavit of Reinhard XI

von Westrem, 21
June 1948.

Reinhardt 208 Reinhardt Ex. 17— Memorandum by XI

Quartiermeister 2
of the 3d Panzer
Army, 12 March
1944, concerning the
report of fortress
engineer Staff 7
dated 6 March 1944.

Reinhardt 222 Reinhardt Ex. 18__ Extract from activity XI

report of 3d Panzer
Army, 1 January-
30 June 1944, con-
cerning condition of
Russian workers.

Reinhardt 302 Reinhardt Ex. 136_ Extract from the XI

American “Rules of
Land Warfare” con-
cerning treatment
of enemy property.

Pajje

864

1134

230

215

48

278

279
317

752

Document No. Exhibit No. Duecription Volume

Reinhardt 303 Reinhardt Ex. 135_ Extract from the XI

44 British Yearbook
of International
Law” 1944, concern-
ing violations of the
law of war.

Reinhardt 367 - Reinhardt Ex. 92__ Extract from Enemy XI

Intelligence Gazette
No. 3 of 3d Panzer
Army, 2 March 1942,
concerning treat-
ment of German
prisoners of war.

Von Roques 1 Von Roques Ex. 1__ Fuehrer’s basic order X

on secrecy, 25 Sep-
tember 1941.

Von Roques 24 Von Roques Ex. 28_ Affidavit of Hans von XI

Tettau, 30 April
1948.

Von Roques 49 Von Roques Ex. 9 Brauchitsch Order X

and OKH distribu-
tion list, 24 May
1941, amplifying
Barbarossa Juris-
diction Order.

Schniewind C-100— .. Schniewind Ex. 58_ Minutes of report by X

Raeder to Hitler, 23
February 1940, on
Operation 44 Weser
Exercise”.

Organizational struc- X
ture of the High
Command of the
German Navy
(OKM).

Schniewind Schniewind The Naval War Staff X

SKL 112 Ex. 2 within the OKM

(High Command of
the Navy) .

Schniewind Schniewind Extract from 44 Nauti- X

SKL 113 Ex. 5 cus 1939”, yearbook

for Germany’s na-
val interests, con-
taining comparison
of naval strength of
Germany, France,
and Great Britain
as of 1 September
1938.

Schniewind Schniewind

SKL 111 Ex. 1

Page

318

33

315

57

1118

759

290

291
518

753

Document No.

Schniewind
SKL 229_

Schniewind
SKL 301_

Schniewind
SKL 308.

Schniewind
SKL 315.

Schniewind

SKL 316-

Schniewind
SKL 323_

Schniewind
SKL 324_

Schniewind
SKL 403_

Schniewind
SKL 506_

754

Exhibit No. Description Volume

Schniewind Extracts from the X

Ex. 42 White Book of the

German foreign of-
fice, 1939, entitled
“Documents ex-
plaining events
leading up to the
war”.

Schniewind Affidavit of Theodor X

Ex. 55 Krancke, 28 March

1948.

Schniewind Extract from war X

Ex. 49 diary, Naval Opera-

tions Staff, 11-12
December 1939, con-
cerning Norway.

Schniewind Official Norwegian X

Ex. 57 and British state-

ments, 19, 20, 24
February 1940, con-
cerning Altmark in-
cident.

Schniewind Entry in war diary X

Ex. 59 of Naval Operations

Staff, 4 March 1940,
concerning attitude
of Norway.

Schniewind Entry in war diary of X

Ex. 64 Naval War Staff, 8

April 1940, concern-
ing Allied mine lay-
ing in Norwegian
waters.

Schniewind Entry in war diary of X

Ex. 65 Naval War Staff, 26

April 1940, and ex-
tract from German
White Book con-
cerning British op-
erational plans with
respect to Norway.

Schniewind Entry in war diary of X

Ex. 80 Naval War Staff,

concerning inten-
tions in the west, 2
October 1939.

Schniewind Extracts from the war X

Ex. Ill diary of the Naval

War Staff, 1-31 De-
cember 1940, con-
cerning Operation
Marita.

Page

741

Do 1

Speri

778 ?, ' arl

752 I far!

far!

756

764

C

Ext

F

773

j| En

I (

■ ^

(

882 | | h

Mh

902

E

Document No. Exhibit No. Description Volume Page

Sperrle 79 Sperrle Ex. 79 Sworn deposition of X 618

Kurt von Schusch-
nigg, 14 June 1948,
answering interrog-
atories submitted by
counsel for the de-
fendant Sperrle and
by the prosecution.

Warlimont 46 Warlimont Ex. 48_. Affidavit of Herbert XI 193

Buechs, 27 April
1948.

Warlimont 69 Warlimont Ex. 67_ Affidavit of Werner X 1033

Kreipe, 12 April
1948.

Warlimont 106 Warlimont Ex. 104. Extracts from British XI 159

service publication
“The Handbook of
Modern Irregular
Warfare”.

TESTIMONIES

Volume

Page

Extract from the testimony of prosecution witness

Hans Fmechte

XI

15

Extract from the testimony of defense witness

Captain Russel Grenfell

X

718

Extracts from the testimony of defense witness

Franz Haider

X

314,

532, 634, 711

, 855,

925, 1083,
1264

1205,

Extract from the testimony of defense witness
Otto Heidkaemper _ _

Extract from the testimony of prosecution witness

XI

294

General Adolf Heusinger

X

298

Extract from the testimony of defendant Hollidt

X

937

Extracts from the testimony of defendant Hoth

X

886,

1044, 1109,

1170

Extracts from the testimony of defendant

von Kuechler

X

576,

742, 882,
1224

1200,

Extracts from the testimony of defendant von Leeb

X

563,

621, 722,

1090, 1188

1034,

755

Volume

Page

Extracts from the testimony of defendant Lehmann j

X

XI

580,

1081,

217,

316,
1137
, 249

Extract from the testimony of prosecution witness
General Kurt Linde

X

292

Extracts from the testimony of defense witness (

General Franz Mattenklott |

1189

69

Extract from the testimony of defense witness
SS Major General Otto Ohlendorf

X

1277

Extract from the testimony of prosecution witness
Paul Ohler

XI

24

Extract from the testimony of defendant Reinecke

XI

36

Extracts from the testimony of defendant Reinhardts <

i X

! XI

1047,

1101

164

Extract from the testimony of defendant von Roques

X

1283

Extracts from the testimony of defendant
von Salmuth

X

888,

1186,

1228

Extract from the testimony of defense witness
Karl Schall

XI

60

Extracts from the testimony of defendant
Schnietvind

X

727

Extract from the testimony of prosecution witness
Hans Schoenig

XI

110

Extracts from the testimony of defendant
Warlimonl

X

XI

531,

1021,

282,
798, 930,

1066
126, 182

Extract from the testimony of defense witness
Reinhard von Westrem

XI

53

Extract from the testimony of defense witness
Eberhard Wes terkamp

XI

285

Extracts from the testimony of defendant Woehler *

t x

! XI

1236,

1291

318

756

“The Hostage Case ”

Military Tribunal V

Case 7

The United States of America

— against —

Wilhelm List, Maximilian von Weichs, Lothar Rendulic,
Walter Kuntze, Hermann Foertsch, Franz Boehme, Hel-
muth Felmy, Hubert Lanz, Ernst Dehner, Ernst von
Leyser, Wilhelm Speidel, and Kurt von Geitner, Defendants

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INTRODUCTION

The “Hostage Case” was officially designated United States of
America vs. Wilhelm List, et al. (Case No. 7.) The name “Hos-
tage Case” arises from the fact that the greater part of the trial
was concerned with alleged hostage or reprisal actions of one
kind or another. Less frequently the case was popularly called
the “Southeast Case” because most of the alleged criminal conduct
occurred while the defendants were acting as field commanders
or chiefs of staff to field commanders in southeastern Europe.

The indictment, under four closely related counts, charged the
defendants with the commission of war crimes and crimes against
humanity during the period between Germany’s invasion of Poland
in September 1989 and Germany’s unconditional surrender in
May 1945. Generally speaking, the specifications of the criminal
conduct charged may be summarized as follows: count one, the
murder of thousands of persons from the civilian populations of
Greece, Yugoslavia, and Albania in connection with alleged hostage
or reprisal actions ; count two, the plundering, looting, or wanton
destruction of private and public property in Norway, Greece,
Yugoslavia, and Albania; count three, participation in the initia-
tion, distribution, or execution of illegal orders such as orders
directing that enemy troops be denied quarters and the status and
rights of prisoners of war ; and count four, the illegal treatment of
civilian populations by murder, torture, persecution, imprisonment
in concentration camps, deportation to slave labor, and other
related acts.

The defendant Boehme committed suicide after indictment and
prior to arraignment. During the defense case, the case against
the defendant von Weichs was severed for reasons of physical
disability not permitting him to conclude his defense. Of the
remaining 10 defendants who stood trial, the Tribunal found 8
guilty under one or more counts and 2 not guilty under any count.

The Hostage Case was tried in the Palace of Justice in Nuern-
berg before Military Tribunal V. The Tribunal convened on 117
trial days, and the trial lasted approximately 9 months, as

10 May 1947
8 July 1947
15 July 1947
15-16 September 1947
3 February 1948
4-7, 9 February 1948
19 February 1948

shown by the following schedule:

Indictment filed
Arraignment

Prosecution opening statement
Defense opening statements
Prosecution closing statement
Defense closing statements
Judgment

759

Sentence

Affirmation of sentences by Military Com-
mander of the United States Zone of
Occupation

Order of the United States Supreme Court
denying writs of habeas corpus

19 February 1948

18 January 1949

2 May 1949

The English transcript of the Court proceedings, including the
judgment and the sentences, runs to 10,544 mimeographed pages.
The prosecution introduced into evidence 678 written exhibits
and the defense 1,025 exhibits. (Some of the exhibits contained
several documents.) The Tribunal heard oral testimony of 16
witnesses called by the prosecution and 36 witnesses, excluding
the defendants, called by the defense. Each of the 10 defendants
who stood trial to the end testified on his own behalf, and each
was subject to examination on behalf of the other defendants.
The exhibits offered by both the prosecution and defense con-
tained documents, photographs, affidavits, interrogatories, letters,
maps, charts, and other written evidence. Most of the defense
exhibits were affidavits. The prosecution called only 14 of the
defense affiants for cross-examination and only 12 of them ap-
peared in Court and were cross-examined. The Tribunal was
in recess between 28 August 1947 and 15 September 1947 to give
the defense additional time to prepare its case.

The members of the Tribunal and prosecution and defense coun-
sel are listed in the ensuing pages. Prosecution counsel were
assisted in preparing the case by Fred Kaufman and Guillaume
Koch, interrogators, and Robert W. Blakesley, Mary Carter, Vin-
cent Czeisler, Viola M. Farmakis, Frank Freudenthal, and Eliza-
beth Stewart, research and documentary analysts.

Much of the documentary evidence of the prosecution as well
as the defense material ordered by the Tribunal was supplied by
the Washington Screening Team.

Jf

Selection and arrangement of the Hostage Case material published herein
was accomplished principally by Arnost Horlik-Hochwald, working under the
general supervision of Drexel A. Sprecher, Deputy Chief of Counsel, and Direc-
tor of Publications Office, U. S. Chief of Counsel for War Crimes. Henry A.
Buxbaum, Emilie Evand, Gerhard Fischer, and Dr. Gerhard H. Rauschenbach
assisted in selecting, compiling, editing, and indexing the numerous papers.

John H. E. Fried, Special Legal Consultant to the Tribunals, reviewed and
approved the selection and arrangement of the materials as the designated
representative of the Nuernberg Military Tribunals.

Final compilation and editing of the manuscript for printing was adminis-
tered by the War Crimes Division, Office of the Judge Advocate General, under
the supervision of Richard A. Olbeter, Chief, Special Projects Branch, with
Max W. Carr as editor and John W. Mosenthal as research analyst.

760

19 #

)

ORDER CONSTITUTING TRIBUNAL V

HEADQUARTERS, EUROPEAN COMMAND

28 June 1947

General Orders i
No. 70 ^

PURSUANT TO MILITARY GOVERNMENT ORDINANCE

NO. 7

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1. Effective as of 28 June 1947, pursuant to Military Govern-
ment Ordinance No. 7, 24 October 1946, entitled “Organization
and Powers of Certain Military Tribunals”, there is hereby con-
stituted Military Tribunal V.

2. The following are designated as members of Military Tri-
bunal V :

Charles F. Wennerstrum Presiding Judge

Edward F. Carter Judge

George J. Burke Judge

i ap- 3. The Tribunal shall convene at Nuernberg, Germany, to hear
was such cases as may be filed by the Chief of Counsel for War
give Crimes or by his duly designated representative.

By command of GENERAL CLAY :

OHM

m ' C. R. Huebner

u® Lieutenant General, GSC

m ! Chief of Staff

Official :

GEORGE E. NORTON, JR
Lieutenant Colonel, AGD
Asst. Adjutant General

Distribution: “B”

2— AG, MRU, EUCOM
" 3 — The Adjutant General

w War Department

,■ Attn: Operations Branch

AG AO— I

1 — OPO Reports Section
800— H2 EUCOM

ider

liti

761

MEMBERS OF THE TRIBUNAL

Judge Charles F. Wennerstrum, Presiding,

Justice of the Supreme Court of the State of Iowa.

Judge Edward F. Carter, Member,

Judge of the Supreme Court of the State of Nebraska.

Judge George J. Burke, Member,

Attorney, Member of the Bar of the State of Michigan. Appointed by
the Supreme Court of the United States in 1941 as member of the Ad-
visory Committee on Rules of Criminal Procedure for the district courts
of the United States.

ASSISTANT SECRETARIES GENERAL

Major Mills C. Hatfield 8 July 1947 to 7 August 1947

John L. Stone 11 August 1947 to 12 August 1947

Major Mills C. Hatfield 13 August 1947 to 19 August 1947

John L. Stone 20 August 1947 to 22 August 1947

M. A. Royce 25 August 1947 to 27 August 1947

Major Mills C. Hatfield 28 August 1947

Captain Evert C. Way 15 September 1947 to 19 February 1948

762

893964 O - 51 (Face p. 762)

TRIBUNAL V— CASE SEVEN

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Seated along the railing at top of photograph are visiting clergymen observing the trial . Mr. Theodore F enstermacher , Associate

Chief Prosecutor, is at the speaker's podium.

PROSECUTION COUNSEL

Chief of Counsel:

Brigadier General Telford Taylor

Deputy Chief Counsel :

Mr. James M. McHaney

Chief Prosecutors :

Mr. Clark Denney

Mr. Theodore F. Fenstermacher

Associate Counsel:

Mr. George B. Fulkerson
Mr. Walter Rapp

Defendants

Boehme, Franz 1

Dehner, Ernst Friedrich

Felmy, Helmuth Walter
Wolfgang

Foertsch, Hermann

Defense Counsel

Dr. Friedrich Bergold

Dr. Hans Gawlik

Dr. Heinz Mueller-
Torgow

Dr. Gerhard Rauschen-
bach

Geitner, Kurt Ritter
von

Kuntze, Walter

Lanz, Hubert Karl

Leyser, Ernst Hans
Ulrich von

List, Wilhelm Siegmund
Walter

Rendulic, Lothar

Speidel, Wilhelm

Weichs, Maximilian
von 2 * * * * 7

DEFENSE COUNSEL

Dr. Fritz Sauter

Dr. Georg Menzel
Dr. Fritz Sauter
Dr. Edmund Tipp

Dr. Hans Laternser

Stefan Fritsch

Dr. Joseph Weisgerber

Dr. Hans Laternser

Associate Defense Counsel

Dr. Heinrich Klug
J ohannes Dohme

Guenther Hindemith

Dr. Walter Schmitt

Dr. Walter Beier
Herbert Geitner
Dr. Walter Gross

Dr. Hans Wilhelm Lier

Dr. Oskar von Jagwitz
Dr. Erich BergLER
Dr. Harold Lucht

1 Committed suicide after indictment and prior to the arraignment.

2 The defendant von Weichs became ill on 6 October 1947, and was granted permission to

be absent from the trial. The medical commission which was appointed upon application of

the counsel for the defendant, 12 December 1947, found the defendant’s physical condition

prevented his further participation in the trial. The defendant’s case was severed from that

of the remaining defendants before the conclusion of the trial by order of Military Tribunal V,

7 January 1948.

893964—51 50

763

I. INDICTMENT, INCLUDING APPENDIX LISTING
POSITIONS OF THE DEFENDANTS

The United States of America, by the undersigned Telford
Taylor, Chief of Counsel for War Crimes, duly appointed to
represent said Government in the prosecution of war criminals,
charges the defendants herein with the commission of war crimes
and crimes against humanity, as defined in Control Council Law
No. 10, duly enacted by the Allied Control Council on 20 December
1945. These crimes included murder, ill-treatment, and deporta-
tion to slave labor of prisoners of war and other members of the
armed forces of nations at war with Germany, and of civilian
populations of territories occupied by the German armed forces,
plunder of public and private property, wanton destruction of
cities, towns, and villages, and other atrocities and offenses against
civilian populations.

The persons accused as guilty of these crimes and accordingly
named as defendants in this case are:

Wilhelm List — Generalfeldmarschall (General of the Army) ;
Commander in Chief 12th Army, April-October 1941 ; Wehr-
machtsbefehlshaber Siidost (Armed Forces Commander South-
east), June-October 1941; Commander in Chief Army Group A,
July-September 1942.

Maximilian von Weichs — Generalfeldmarschall (General of
the Army) ; Commander in Chief 2d Army, April 1941-July 1942 ;
Commander in Chief Army Group B, July 1942-February 1943;
Commander in Chief Army Group F and Supreme Commander
Southeast, August 1943-March 1945.

Lothar Rendulic — Generaloberst (General) ; Commander in
Chief 2d Panzer Army, August 1943-June 1944; Commander in
Chief 20th Mountain Army, July 1944-January 1945; Wehr-
machtsbefehlshaber Nord (Armed Forces Commander North),
December 1944-January 1945; Commander in Chief Army Group
North, January-March 1945; Commander in Chief Army Group
Courland, March-April 1945; Commander in Chief Army Group
South, April-May 1945.

Walter Kuntze — General der Pioniere (Lieutenant General,
Engineers) ; Acting Commander in Chief 12th Army, October
1941-August 1942.

Hermann Foertsch — General der Infanterie (Lieutenant Gen-
eral, Infantry) ; Chief of Staff 12th Army, May 1941-August
1942; Chief of Staff Army Group E, August 1942-August 1943;
Chief of Staff Army Group F, August 1943-March 1944.

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Franz Boehme — General der Gebirgstruppen (Lieutenant Gen-
eral, Mountain Troops) ; Commander XVIII Mountain Army
Corps, April-December 1941 ; Plenipotentiary Commanding Gen-
eral in Serbia, September-December 1941 ; Commander in Chief
2d Panzer Army, June-July 1944; Commander in Chief 20th
Mountain Army and Wehrmachtsbefehlshaber Nord (Armed
Forces Commander North), January-May 1945.

Helmuth Felmy — General der Flieger (Lieutenant General,
Air Force) ; Commander Southern Greece, June 1941-August
1942; Commander LXVIII Army Corps, June 1943-October 1944.

Hubert Lanz — General der Gebirgstruppen (Lieutenant Gen-
eral, Mountain Troops) ; Commander 1st Mountain Division Octo-
ber 1940-January 1943; Commander XXII Mountain Army Corps,
August 1943-October 1944.

Ernst Dehner — General der Infanterie (Lieutenant General,
Infantry) ; Commander LXIX Army Reserve Corps, August 1943-
March 1944.

Ernst VON Leyser — General der Infanterie (Lieutenant Gen-
eral, Infantry) ; Commander XV Mountain Army Corps, Novem-
ber 1943-July 1944; Commander XXI Mountain Army Corps,
July 1944-April 1945.

Wilhelm Speidel — General der Flieger (Lieutenant General
Air Force) ; Commander Southern Greece, October 1942-Sep-
tember 1943; Military Commander Greece, September 1943-June
1944.

Kurt von Geitner — Generalmajor (Brigadier General) ; Chief
of Staff to the Commanding General in Serbia, July 1942-August
1943; Chief of Staff to the Military Commander of Serbia and
Military Commander Southeast, August 1943-October 1944.

Reference is hereby made to the Appendix to this indictment
for a fuller statement of the positions held by each of the defend-
ants herein.

COUNT ONE

1. Between September 1939 and May 1945, all of the defendants
unlawfully, wilfully, and knowingly committed war crimes and
crimes against humanity, as defined in Article II of Control
Council Law No. 10, in that they were principals in, accessories to,
ordered, abetted, took a consenting part in, were connected with
plans and enterprises involving, and were members of organiza-
tions or groups connected with, the murder of hundreds of
thousands of persons from the civilian populations of Greece,
Yugoslavia, and Albania, by troops of the German armed forces
under the command and jurisdiction of, responsible to, and acting

765

pursuant to orders issued, executed, and distributed by, the
defendants herein. The victims of these crimes included persons
from all walks of life — doctors, lawyers, clergymen, artists,
teachers, laborers, farmers — who, regardless of age or sex, were
rounded up from the streets, from their homes, or from their
places of work, and placed in prison camps and stockades. When
attacks by lawfully constituted enemy military forces, and attacks
by unknown persons, against German troops and installations took
place, these persons were, without benefit of investigation or trial,
summarily hanged or shot. They were executed at arbitrarily
established ratios varying from 50 to 100 for each German
soldier killed and 25 to 50 for each German soldier wounded.

2. Other thousands of noncombatants, arbitrarily designated as
“partisans,” “Communists,” “Communist suspects,” “bandits,”
and “bandit suspects,” also without benefit of investigation or
trial, were terrorized, tortured, and murdered, in retaliation for
attacks by lawfully constituted enemy military forces and attacks
by unknown persons against German troops and installations.

3. These acts of collective punishment were part of a deliberate
scheme of terror and intimidation, wholly unwarranted and un-
justified by military necessity and in flagrant violation of the
laws and customs of war, to compel the inhabitants of the afore-
mentioned territories to furnish information concerning the size,
strength, and disposition of their national armies, to reduce the
manpower potential of the armies of resistance, and to decimate
for future generations the native populations of these occupied
territories.

4. Pursuant to, and in implementation of, this scheme of terror
and intimidation, the defendants herein issued, executed, and
distributed, to troops under their command and jurisdiction,
orders for the execution of 100 “hostages” in retaliation for each
German soldier killed, 50 “hostages” in retaliation for each Ger-
man soldier wounded, 10 “hostages” in retaliation for each person
under German protection killed, 5 “hostages” in retaliation for
each person under German protection wounded, and up to 100
“hostages” in retaliation for each attack upon any “object”
under German protection.

5. The murders and other crimes charged in this count included,
but were not limited to, the following :

a. On or about 28 April 1941, the Commander in Chief of the
2d Army ordered the execution of 100 Serbs, taken from all
classes of the population, in retaliation for the death of one
German soldier and the wounding of two others, and publicly
announced that “in the future 100 Serbs will be ruthlessly shot for

766

every German harmed as a result of a surprise attack conducted
by Serbs.”

b. On or about 3 September 1941, in Serbia, troops of the
LXV Hoeheres Kommando (Corps Command), under the com-
mand and jurisdiction of the 12th Army, executed 20 “Com-
munists” in reprisal for the death of three German soldiers
killed in a surprise attack on the Rtanj mine.

c. On or about 30 October 1941, the Plenipotentiary Command-
ing General of Serbia, in his 10 day report to the Commander in
Chief of the 12th Army and Supreme Commander Southeast,
stated that the following executions had taken place: “405 hos-
tages in Belgrade (total up to now in Belgrade, 4,750), 90
Communists in Camp Sabac, 2,300 hostages in Kragujevac, and
1,700 hostages in Kraljevo.”

d. On or about 29 November 1941, in Belgrade, Yugoslavia,
troops under the command and jurisdiction of the commanding
general in Serbia executed 100 “hostages” in retaliation for the
killing of a German sergeant.

e. On or about 17 March 1943, the commanding general in
Serbia ordered troops under his command and jurisdiction to
execute 10 “Communists” in retaliation for the destruction of 14
telegraph poles southwest of Topola, Serbia, during the night
25-26 February 1943.

f. On or about 27 June 1943, troops under the command and
jurisdiction of the commanding general in Serbia executed 350
“Communists” in retaliation for the murder of three German
customs officials.

g. On or about 15 August 1943, troops under the command
and jurisdiction of the commanding general in Serbia executed 150
hosta,ges in retaliation for the murder, on 9 August 1943, of two
German soldiers and the wounding of two others on the road near
Pozarevac, Serbia.

h. On or about 15 September 1943, the military commander of
Serbia and Military Commander Southeast ordered troops under
his command and jurisdiction to execute 450 “Communist sus-
pects” in retaliation for the attack of 1 September 1943, on a
German column near Crkvice, Serbia, as a result of which seven
German policemen were killed and four wounded.

i. On or about 15 September 1943, in Croatia, as a measure of
revenge for a railway raid, troops of the 173d Reserve Division,
under the command and jurisdiction of the LXIX Reserve Corps,
executed 40 “hostages” at the place of the raid.

j. On or about 30 September 1943, in retaliation for sabotage
on an electric installation, troops under the command and juris-
diction of the XXII Mountain Corps executed 17 civilians.

767

k. On or about 28 September 1943, in Croatia, troops of the
173d Reserve Division, under the command and jurisdiction of the
LXIX Reserve Corps, executed 40 “hostages” in retaliation for an
attack on a railway.

l. On or about 3 October 1943, in reprisal for an attack on a
motorcycle escort in which a noncommissioned officer was killed,
troops under the command and jurisdiction of the XXII Moun-
tain Corps “executed four hostages at once” and reported that
“further retaliation measures were continuing.”

to. On or about 10 October 1943, in retaliation for a raid on
a freight train 12 km. southeast of Vinkovci, Croatia, troops of
the 187th Reserve Division, under the command and jurisdiction
of the LXIX Reserve Corps, executed 20 “bandit suspects” taken
from near the place of the raid.

n. On or about 26 November 1943, in retaliation for an attack
by “bandits” on the road Tripolis-Sparta, Greece, troops under
the command and jurisdiction of the LX VIII Infantry Corps
executed 100 “hostages” at the site of the attack.

o. On or about 2 December 1943, in retaliation for an attack on
a railway station southeast of Tripolis, Greece, troops under the
command and jurisdiction of the LXVIII Infantry Corps executed
50 “hostages.”

p. On or about 5 December 1943, in Aighion, Greece, troops
under the command and jurisdiction of the LXVIII Infantry
Corps shot 50 “hostages” in reprisal for recent attacks.

q. On or about 10 January 1944, troops under the command and
jurisdiction of the military commander of Greece executed 50
“Communists” in retaliation for the murder of two German
policemen.

r. On or about 21 March 1944, troops under the command and
jurisdiction of the military commander. of Greece executed 52
“hostages” in Tripolis, Greece, and 44 “hostages” in Sparta,
Greece, as a retaliation measure.

s. On or about 28 March 1944, while carrying out a mopping-up
operation, troops of the 7th SS “Prinz Eugen” Division and de-
tachments of the 369th “Devil’s” Division, under the command and
jurisdiction of the 2d Panzer Army, raided numerous peaceful
Croatian villages, burned the inhabitants alive, and set fire to
their property. Three hundred persons were killed at Krivodol,
five in Smilici, 40 in Legatori, 65 in Grubisipici, 80 in Bandovina-
Blazevici, 645 in Vostani, and 700 in Rudi. In Otok 22 persons
and in Ovrlije 150 persons were burned to death, in Sladovici
seven persons were shot and the entire village burned to the
ground.

t. On or about 5 April 1944, troops of the 4th SS (Police)

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Panzer Grenadier Division, under the command and jurisdiction
of the LXVIII Infantry Corps, brutally murdered 215 persons,
mostly old men, women, and children, in the village of Klissura,
Greece, in retaliation for the death of two German soldiers killed
in the neighborhood of that village by members of Greek “partisan”
units.

u. On or about 10 June 1944, troops of the 4th SS (Police)
Panzer Grenadier Regiment [Division], under the command and
jurisdiction of the LXVIII Infantry Corps, shot and killed, in the
village of Distomon, Greece, 300 “bandits” and “bandit suspects”
and set the village on fire.

v. On or about 11 August 1944, in reprisal for an attack east of
Kukes, Albania, in which two cars were set on fire, troops of
the 21st SS “Skanderbeg” Division under the command and juris-
diction of the XXI Mountain Corps, hanged six “hostages” at the
place of the attack.

w. On or about 15 August 1944, in Athens, Greece, troops under
the command and jurisdiction of the Military Commander of Greece
executed 200 Greek citizens and 100 “Communists” in retaliation
for the death of the German General Krech.

6. The acts and conduct of the defendants set forth in this count
were committed unlawfully, willfully, and knowingly, and con-
stitute violations of international conventions, of the Hague Regu-
lations 1907, of the laws and customs of war, of the general
principles of criminal law as derived from the criminal laws of all
civilized nations, of the internal penal laws of the countries in
which such crimes were committed, and were declared, recognized,
and defined as crimes by Article II of Control Council Law No. 10.

COUNT TWO

7. Between September 1939 and May 1945, all of the defendants
unlawfully, willfully, and knowingly committed war crimes and
crimes against humanity, as defined in Article II of Control Coun-
cil Law No. 10, in that they were principals in, accessories to,
ordered, abetted, took a consenting part in, were connected with
plans and enterprises involving, and were members of organiza-
tions or groups connected with, the plundering and looting of
public and private property, the wanton destruction of cities,
towns, and villages, frequently together with the murder of the
inhabitants thereof, and the commission of other acts of devas-
tation not justified by military necessity, in the occupied terri-
tories of Norway, Greece, Yugoslavia, and Albania, by troops of
the German armed forces under the command and jurisdiction of,
responsible to, and acting pursuant to orders issued, executed,

and distributed by, the defendants herein. The defendants
ordered troops under their command and jurisdiction to burn,
destroy, and level to the ground entire villages and towns, and, on
numerous occasions, to execute the inhabitants of such villages and
towns. Such arbitrary, inhumane, and disproportionately harsh
measures of reprisal dislocated hundreds of families, made thou-
sands of peaceful noncombatants homeless and destitute, and
brought untold suffering, humiliation, misery, and death to vast
numbers of innocent civilians.

8. This program of wholesale devastation was carried out not
only as part of a cruel, senseless pacification-through-terror scheme,
wholly unwarranted and unjustified by military necessity and in
flagrant violation of the laws and customs of war, but also in
furtherance of a long-range plan to despoil and retard for decades
the economic and industrial potential of the occupied territories.

9. The acts of destruction and other crimes charged in this
count included, but were not limited to, the following:

a . On or about 10 October 1944, the Commander in Chief of the
20th Mountain Army, the defendant Rendulic, issued an order, to
troops under his command and jurisdiction, for the complete
destruction of all shelter and means of existence in, and the total
evacuation of the entire civilian population of, the northern Nor-
wegian province of Finmark. During the months of October and
November 1944, this order was effectively and ruthlessly carried
out. For no compelling military reasons, and in literal execution
of instructions to show no sympathy to the civilian population,
the evacuated residents were made to witness the burning of their
homes and possessions and the destruction of churches, public
buildings, food supplies, barns, livestock, bridges, transport facil-
ities, and natural resources of an area in which they and their
families had lived for generations. Relatives and friends were
separated, many of the evacuees became ill from cold and disease,
hundreds died from exposure or perished at sea in the small boats
and fishing smacks used in the evacuation, while still others were
summarily shot for refusing to leave their homeland — in all, the
thoroughness and brutality of this evacuation left some 61,000
men, women, and children homeless, starving, and destitute.

b. On or about 25 September 1941, in Serbia, troops under the
command and jurisdiction of the commanding general in Serbia
were ordered to burn, and did burn, villages and farms in and
around the plains of Drina and at the bend of the Sava River.

c. During the months of September and October 1941, in the
course of so-called “punitive expeditions” (Strafexpeditionen),
troops under the command and jurisdiction of the 12th Army
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vac, Zabrizje, Stubline, Pricevic, and Beoluzevic.

d. On or about 15 August 1943, during the course of a reprisal
raid south of Arilje, Serbia, troops under the command and juris-
diction of the commanding general in Serbia burned 460 houses.

e. On or about 24 September 1943, during the execution of
“Action Kammerhofer,” troops of the 173d Reserve Division,
under the command and jurisdiction of the LXIX Reserve Corps,
set fire to two Croatian villages.

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a regimental commander and for telephone “sabotage,” troops
under the command and jurisdiction of the XXII Mountain Corps
destroyed the Greek village of Akmotopos and executed its entire
population.

g. On or about 16 October 1943, troops of the 187th Reserve
Division, under the command and jurisdiction of the LXIX Re-
serve Corps, arrested the inhabitants of the Croatian villages of
Paklonica and Vocarica as “hostages” and then burned the villages
to the ground.

h. On or about 15 November 1943, troops of the 187th Reserve
Division, under the command and jurisdiction of the LXIX Re-
serve Corps, burned the village of Jamena, Croatia.

i. On or about 27 November 1943, troops of the 173d Reserve
Division, under the command and jurisdiction of the LXIX Re-
serve Corps, burned the Croatian village of Grgurevci.

j. On or about 1 December 1943, in the course of retaliation
activities against “bandits” in the district of Korea, Greece, troops
under the command and jurisdiction and the XXII Mountain
Corps destroyed one village and shot all of the able-bodied male
inhabitants found therein.

k. On or about 15 December 1943, in the course of continuing
retaliation activities in the district of Kalavritha, Greece, troops
under the command and jurisdiction of the LXVIII Infantry Corps
burned four villages, completely leveled Kalavritha, destroyed two
convents, and executed 511 male “hostages.”

l. During the period January 1944 — March 1945, troops of the
392d Infantry Division, under the command and jurisdiction of the
XXI Mountain Corps, burned, plundered, and looted the Croatian
villages of Dreznica, Pisac, Tuzevic, and Vojvodersa.

m. On or about 28 March 1944, troops of the 7th SS “Prinz
Eugen” Division under the command and jurisdiction of the 2d
Panzer Army burned, plundered, and looted the Dalmatian vil-
lages of Otok, Ovrnje, Ruda, and Dolac Donji.

n. On or about 15 May 1944, troops under the command and

771

jurisdiction of the LX VIII Infantry Corps burned fifty houses in
the village of Kimi, Greece, in retaliation for an attack on a
German truck.

o. On or about 11 July 1944, troops of the 369th “Devil's” Divi-
sion, under the command and jurisdiction of the 2d Panzer Army,
destroyed by fire the Croatian villages of Zagnjesde and Udora,
executing the male population of those villages and transporting
the female population to the concentration camp at Stolac, Croatia.

p. On or about 13 August 1944, pursuant to an order of the
Commander in Chief Army Group F and Supreme Commander
Southeast, the defendant Weichs, the Greek village of Karpenision
was burned to the ground.

10. The acts and conduct of the defendants set forth in this
count were committed unlawfully, willfully, and knowingly, and
constitute violations of international Conventions, of the Hague
Regulations 1907, of the laws and customs of war, of the general
principles of criminal law as derived from the criminal laws of all
civilized nations, of the internal penal laws of 'the countries in
which such crimes were committed, and were declared, recognized,
and defined as crimes by Article II of Control Council Law No. 10.

COUNT THREE

11. Between September 1939 and May 1945, all of the defend-
ants unlawfully, willfully and knowingly committed war crimes
and crimes against humanity, as defined in Article II of Control
Council Law No. 10, in that they were principals in, accessories
to, ordered, abetted, took a consenting part in, were connected
with plans and enterprises involving, and were members of organi-
zations or groups connected with, the initiation and drafting of
certain illegal orders, and their subsequent issuance and distribu-
tion to, and execution by, troop units of the German armed forces
under the command and jurisdiction of, and responsible to, the
defendants herein. Such illegal orders directed inter alia that
enemy troops be refused quarter and be denied the status and
rights of prisoners of war, and that surrendered members of the
military forces of nations at war with Germany be summarily
executed. Such illegal orders further directed that regular mem-
bers of the national armies of Greece, Yugoslavia, and Italy be
designated and treated by troops of the German armed forces
subordinate to the defendants herein as “partisans,” “rebels,”
“Communists,” and “bandits,” and that the relatives of the mem-
bers of such national armies be held responsible for said members'
lawful acts of warfare. These orders were carried out thoroughly
and ruthlessly, and as a result thousands of soldiers and prisoners
of war were murdered and ill-treated.

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12. The murders and other crimes charged in this count in-
cluded, but were not limited to, the following :

a. On or about 28 April 1941, the Commander in Chief of the
2d Army issued and distributed, to troops under his command and
jurisdiction, an order stating that “whoever appears in the
Serbian uniform with a weapon in his hand transgresses interna-
tional law and is to be shot to death immediately,” that “if in any
area (of Serbia) an armed band appears, then even the men
capable of bearing arms who are seized are to be shot to death,
because they were in the proximity of the band, if it cannot imme-
diately be ascertained with certainty that they were not con-
nected with the band,” and, further, “that the bodies of all per-
sons shot to death are to be hanged up and left hanging.”

b. During a period of time after June 1941, all of the defend-
ants herein issued, executed, and distributed, to troops under their
command and jurisdiction, an order for the summary execution
of political commissars, even though such persons were regularly
attached to, and wore the recognized uniform of, members of the
established military forces of enemy belligerents.

c. On or about 23 July 1941, the Commander in Chief 12th Army
and Supreme Commander Southeast issued and distributed, to
troops under his command and jurisdiction, an order to punish
resistance in the occupied territories of Greece and Yugoslavia
“not by legal prosecution of the guilty, but by spreading terror
and applying draconic measures.”

d. On or about 2 October 1941, the Plenipotentiary Command-
ing General in Serbia ordered troops under his command and
jurisdiction to execute 2,100 Yugoslavian prisoners of war in
retaliation for the death of 21 German soldiers.

e. On or about 4 October 1941, the Plenipotentiary Command-
ing General in Serbia issued an order to troops under his command
and jurisdiction to give no quarter to members of the Yugoslav
National Army.

f. On or about 14 October 1941, the Plenipotentiary Com-
manding General in Serbia ordered troops under his command
and jurisdiction to arrest all wives, and male relatives aged 15
years and over, of members of the Yugoslav National Army and
to confine them in concentration camps.

g. On or about 2 November 1941, the Plenipotentiary Command-
ing General in Serbia issued an order to troops under his command
and jurisdiction to continue the practice of shooting, after a short
interrogation, all “partisans” captured in combat.

h. During a period of time after 18 October 1942, all of the
defendants herein, except the defendant List, issued, executed,
and distributed to troops under their command and jurisdiction an

773

order to execute in battle, or within 24 hours after capture, all
members of Allied “commando” and “military mission” units,
whether or not such persons were regularly attached to, and wore
the recognized uniform of duly authorized members of the estab-
lished military forces of enemy belligerents.

i. On or about 11 September 1943, the Commander in Chief and
the Chief of Staff of Army Group F and Supreme Command
Southeast, the Commander in Chief 2d Panzer Army, the com-
manders of the LXVIII Infantry Corps, XXII Mountain Corps,
LXIX Reserve Corps, and XV Mountain Corps, and the military
commander of Serbia, and Military Commander Southeast, issued,
executed, and distributed to troops under their command and
jurisdiction an order for the execution of one staff officer and
50 men of each division of the surrendered Italian Army which,
prior to its surrender, had sold, given away, or destroyed its
weapons, and for the execution of one officer and 10 men of each
such division which, prior to its surrender, had made a motor
vehicle unusable.

j. On or about 24 September 1943, the Commander of the XXII
Mountain Corps ordered troops under his command and jurisdic-
tion to execute the captured Italian General Gandin, and all offi-
cers of his staff.

k. On or about 28 September 1943, in Croatia, troops under the
command and jurisdiction of the 2d Panzer Army executed 300
captured officers of the Italian “Bergamo” Division.

l. On or about 1 November 1943, troops of the 100th Jaeger
Division, under the command and jurisdiction of the 2d Panzer
Army, executed two captured colonels, the operations and supply
officers, respectively, of the Italian 9th Army.

13. The acts and conduct of the defendants set forth in this
count were committed unlawfully, willfully, and knowingly and
constitute violations of international conventions, of the Hague
Regulations 1907, of the Prisoner of War Convention (Geneva
1929), of the laws and customs of war, of the general principles
of criminal law as derived from the criminal laws of all civilized
nations, of the internal penal laws of the countries in which such
crimes were committed, and were declared, recognized, and defined
as crimes by Article II of Control Council Law No. 10.

COUNT FOUR

14. Between September 1939 and May 1945, all of the defend-
ants unlawfully, willfully, and knowingly committed war crimes
and crimes against humanity, as defined in Article II of Control
Council Law No. 10, in that they were principals in, accessories

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to, ordered, abetted, took a consenting part in, were connected
with plans and enterprises involving, and were members of organi-
zations or groups connected with, the murder, torture, and system-
atic terrorization, imprisonment in concentration camps, arbi-
trary forced labor on fortifications and entrenchments to be used
by the enemy, and deportation to slave labor, of the civilian popu-
lations of Greece, Yugoslavia, and Albania, by troops of the Ger-
man Armed Forces under the command and jurisdiction of,
responsible to, and acting pursuant to orders issued, executed, and
distributed by, the defendants herein. Great numbers of citi-
zens — “democrats, nationalists, Jews, and gypsies” — were arbi-
trarily seized and thrown into concentration camps where they
were systematically beaten, tortured, ill-treated, and murdered,
while other masses of the civilian population were forcibly con-
scripted for labor in the Reich and the occupied territories, trans-
ported in trains without adequate heat or sanitary conditions, and
there, separated from family and friends, were made to labor
long hours under inhumane conditions.

15. The murders, imprisonment in concentration camps, depor-
tation to slave labor, and other crimes charged in this count
included, but were not limited to, the following :

a. On or about 23 September 1941, troops of the 342d Division,
under the command and jurisdiction of the XVIII Mountain Corps,
were ordered to place the entire male population, between the
ages of 14 and 70, of the town of Sabac, Serbia, in a concentration
camp.

b. On or about 6 October 1941, the Plenipotentiary Command-
ing General in Serbia ordered troops of the 342d Infantry Divi-
sion, under the command and jurisdiction of the XVIII Mountain
Corps, to clear the district south of Mitrovica and northeast of
Ravnje of its entire population and to erect in the nearby town of
Zasaviza a concentration camp capable of accommodating 30,000
persons.

c. On or about 11 October 1941, the Plenipotentiary Command-
ing General in Serbia ordered the execution of 2,200 Jews from a
concentration camp in Belgrade, Yugoslavia.

d. On or about 10 August 1943, the Chief of Staff Army Group
E and Supreme Command Southeast issued, executed, and dis-
tributed to troops subordinate to that command an order to deport
the male population of whole villages in the occupied territories
of Greece and Yugoslavia for forced labor in Germany, and “to
answer attacks on German soldiers and damage to German prop-
erty in all cases by the shooting or hanging of hostages, the de-
struction of surrounding villages, etc.”

e. On or about 30 November 1943, during “Aktion Hafenfahrt,”

775

troops of the 100th Jaeger Division, under the command and
jurisdiction of the 2d Panzer Army, were ordered to arrest and
deport to the concentration camp at Semlin all “Communists” in
the Albanian cities of Durazzo and Shijeb.

/. On or about 2 December 1943, the Commander in Chief of
the 2d Panzer Army ordered troops under his command and juris-
diction engaged in the Operation “Panther” to evacuate the male
population of Croatian towns and villages for deportation to
forced labor in Germany.

g. On or about 3 December 1943, during Opei'ation “Panther,”
the Commander of the XV Mountain Corps ordered troops under
his command and jurisdiction to deport the able-bodied population
of numerous Croatian villages to Germany for forced labor.

16. The acts and conduct of the defendants set forth in this
count were committed unlawfully, willfully, and knowingly and
constitute violations of international conventions, of the Hague
Regulations 1907, of the laws and customs of war, of the general
principles of criminal law as derived from the criminal laws of all
civilized nations, of the internal penal laws of the countries in
which such crimes were committed, and were declared, recognized,
and defined as crimes by article II of Control Council Law No. 10.

Wherefore, this indictment is filed with the Secretary General
of the Military Tribunals and the charges herein made against the
above-named defendants are hereby presented to the Military
Tribunals.

TELFORD TAYLOR

Brigadier General, USA
Chief of Counsel for War Crimes
Acting on behalf of the United States
of America

Nuernberg, 10 May 194.7

APPENDIX TO THE INDICTMENT

Statement of Military Commands Held by Each of the
Defendants, September 1939 to May 1945

The following is a list of the high military commands held by each of the
defendants in the German armed forces during the period September 1939-
May 1945. Each of the defendants, in holding and exercising these com-
mands committed war crimes and crimes against humanity as set forth in
this indictment.

LIST

The defendant Wilhelm List during the period September 1939-May 1945
was: (1939) commander in chief, 14th Army during the campaign against

776

Poland ; (1989-1.940) commander in chief, 12th Army in the west; (1941)
commander in chief, 1 2th Army and Supreme [Armed Forces] Commander
Southeast during 1 the campaign against, and subsequent occupation of,
Greece; (1942) commander in chief, Army Group A on the eastern front;
retired on 10 September, 1942.

Decorations

Ritterkreuz [ Knight's Cross ] ; Slowakisches Siegerkreuz [Slovakian Vic-
tory Cross ] ; Grosskreuz des Heiligen Alexander mit Schwert [ Grand Cross
of the Holy Alexander with Sword ] ; Grosskreuz des Ungarischen Militaer-
ischen Verdienstordens mit Schwert [ Grand Cross of the Hungarian Military
Order of Merit with Sword ] ; Michael der Tapfere II. und III. Klasse
[ Order of Michael the Brave 2d and 3d CZass] ; Grossoffizier des Orden vom
Haus Savoven mit Schwert [Officer of the Order of the House of Savoy with
Sword].

Promotions

(1989) Generaloberst (general); (18 July 1940) Generalfeldmarschall
(general of the army).

WEICHS

The defendant Maximilian von Weichs during the period September 1939-
May 1945 was: (1938-1939) commanding general, XIII Infantry Corps

during the occupations of Austria, the Sudetenland, and Czechoslovakia, and
during the campaign against Poland; (1940-1942) commander in chief, 2d
Army during the campaigns against the Low Countries, France, Yugoslavia,
and Russia; (1942-1943) commander in chief, Army Group B on the eastern
front; (1943-1945) commander in chief, Army Group F and Supreme Com-
mander Southeast during the occupations of Greece, Yugoslavia, and Albania;
(March-May 1945) Fuehrer Reserve.

Decorations

Spange zum E.K. und zum E.K. 1 [Clasp to the Iron Cross 2d Class and
Iron Cross 1st Class] ; Eichenlaub zum Ritterkreuz des E.K. [Oak Leaf to
the Knight's Cross of the Iron Cross] ; Ritterkreuz des Eisernen Kreuzes
[Knight* s Cross of the Iron Cross ] ; Grosskreuz zum Ungarischen Verdienst-
orden [Grand Cross to the Hungarian Order for Meritorious Service ] ;
Orden der Italienischen Krone [Order of the Italian Crown]; Bulgarischer
St. Alexander Orden [Bulgarian St Alexander Order] ; Kroatischer Zvoni-
mir Orden [Croation Zvonimir Order].

Promotions

(1936) General der Kavallerie (lieutenant general, cavalry) ; (1940)

Generaloberst (general) ; (1943) Generalfeldmarschall (general of the

army).

RENDULIC

The defendant Lothar Rendulic during the period September 1939-May
1945 was: (1939) chief of staff, XVII Infantry Corps during the campaign
against Poland; (1940) commanding general, 14th Infantry Division during
the campaigns against the Low Countries and France; (1940-1942) com-
manding general, 52d Infantry Division during the occupation of France and

777

the campaign against Russia; (1942-1943) commanding general, XXXV
Army Corps on the eastern front; (1943-1944) commander in chief, 2d
Panzer Army during the occupation of Yugoslavia and Albania; (1944)
commander in chief, 20th Mountain Army in Finland and Norway and com-
mander in chief, Armed Forces in Norway [armed forces commander, Nor-
way] ; (1945) commander in chief, Army Group North in East Prussia,
commander in chief, Army Group Courland, and commander in chief, Army
Group South.

Decorations

Eisernes Kreuz I and II [ Iron Cross 1st and 2d Class ] ; Deutsches Kreuz
in Gold [German Cross in Gold ] ; Ritterkreuz des Eisernen Kreuzes [Knight's
Cross of the Iron Cross] ; Ostmedaille [Eastern Medal ] ; Eichenlaub mit
Schwertern zum Ritterkreuz [Oak Leaves with Swords to the Knight's

Cross ] .

Promotions

(September 1939) Oberst (colonel); (December 1939) Generalmajor
(brigadier general) ; (1941) Generalleutnant (major general) ; (1942)

General der Infanterie (lieutenant general, infantry) ; (1944) Generaloberst
(general) .

Became a member of the Austrian Nazi Party in 1932.

Austrian Military Attache in Paris, France (1934-1936).

KUNTZE

The defendant Walter Kuntze during the period September 1939 to May
1945 was: (1940, 1941) commanding general of XXIV [and XLII] Infantry
Corps during the campaigns against the Low Countries, France, and Russia;
(1941) deputy of Field Marshal List, commander in chief, 12th Army and
Armed Forces Commander Southeast; (1942-1945) in charge of training of
replacement army; (autumn 1944) in charge of work on the West Wall.

Decorations

Spange zum E.K. II und E.K. I [Clasp to Iron Cross 2d Class and Iron
Cross 1st Class ] ; Ritterkreuz des Eisernen Kreuzes [Knight's Cross of the
Iron Cross] ; Deutsches Kreuz in Silber [German Cross in Silver ] ; Schutz-
wallehrenzeichen [Medal of the Atlantic Wall ] ; Grosskreuz zum Bulgar-
ischen Militaerischen Verdienstorden [Grand Cross to the Bulgarian Order for
Meritorious Military Service ] ; Grossorden der Krone Koenig Zvonimirs
[Order of the crown of King Zvonimir ~\ .

Promotions

(1938) General der Pioniere (lieutenant general, engineers).

FOERTSCH

The defendant Hermann Foertsch during the period September 1939-
May 1945 was: (1939) chief of staff of Wehrkreis (Service Command) VIII;
(1939-1940) chief of staff of XXVI Infantry Corps in the west; (1940)
commanding officer of the General Staff Courses in Berlin; (1941) liaison
officer of OKH (Army High Command) with 12th Army in the Balkan
campaign against Greece; (1941) chief of staff of 12th Army; (1942-1943)
chief of staff of Army Group E and later of Army Group F; (summer 1944)
commanding general of the 21st Infantry Division on the eastern front;

778

(1941) commanding- general of the X Infantry Corps; (1945) commander in
chief, 1st Army on western frontier of the Rejch.

Decorations

Spange zum Eisernen Kreuz II. Ivlasse und I. Klasse [ Clasp to the Iron
Cross 2d Class and 1st Class ] ; Deutsches Kreuz in Gold [German Cross in
Gold ] ; Ritterkreuz des Eisernen Kreuzes [Knight* s Cross of the Iron Cross].

Promotions

(1938) Oberst (colonel); (1942) Generalmajor (brigadier general) ; (1943)
Generalleutnant (major general) ; (1944) General der Infanterie (lieutenant
general, infantry).

Publications

Most important publications — Kriegskunst Rente vnd Morgen [The Art of
Warfare Today and Tomorrow].

BOEHME

The defendant Franz Boehme during the period September 1939-May
1945 was: (1939-1940) commanding general, 32d Infantry Division during
the campaigns against Poland, the Low Countries, and France; (1940-1941)
commanding general, XVIII Infantry Corps, and (1941) Plenipotentiary
Military Commander in Serbia; (1942-1943) commanding general, XVIII
Infantry Corps in Finland; (1944) commander in chief, 2d Panzer Army;
(1945) commander in chief, 20th Mountain Army and armed forces com-
mander, Norway.

Decorations

Eisernes Kreuz I. Klasse und II. Klasse [Iron Cross 1st and 2nd Class] ;
Ritterkreuz des Eisernen Kreuzes [Knight's Cross of the Iron Cross ] ;
Deutsches Kreuz in Gold [German Cross in Gold].

Promotions

(1939) Generalleutnant (major general) ; 1940 (General der Gebirgs-
truppen (lieutenant general, mountain troops).

FELMY

The defendant Helmuth Felmy during the period September 1939-May
1945 was: (1939-1940) commander of Luftflotte (Air Fleet) II; (1941)
head of the German Military Mission to Iraq; (1941) Military Commander
Southern Greece and Commander Special Staff F (staff of former Military
Mission Iraq, at that time located in Greece); (1942-1944) commanding-
general of LX VIII Infantry Corps on eastern front, in Greece, Yugoslavia,
and Hungary; (1944-1945) commanding general of XXXIV Infantry Corps
in Yugoslavia.

Decorations

Spange zum E.K. II und I [Clasp to the Iron Cross 2d Class and 1st
Class] ; Deutsches Kreuz in Gold [German Cross in Gold].

Promotions

(1938) General der Flieger (lieutenant general, air force).

Became a member of the Nazi Party in 1940.

893964—51 51

779

LANZ

The defendant Hubert Lanz during the period September 1939-May 1945
was: (1939-1940) chief of staff of Wehrkreis (Service Command) V; (1940)
chief of staff of XVIII Mountain Corps, during the campaigns against the
Low Countries and France; (1940-1943) commanding general of 1st Moun-
tain Division during the campaigns against Yugoslavia and Russia; (1943)
deputy commander of the XLIX Mountain Corps in Russia; (1943-1945)
commanding general of XXII Mountain Corps in Greece and Hungary.

Decorations

Ritterkreuz des Eisernen Kreuzes [ Knight's Cross of the Iron Cross ] ;
Eichenlaub zum Ritterkreuz [ Oak Leaf to the Knight's Cross],

Promotions

(1939) Oberst (colonel); (1940) Generalmajor (brigadier general);
(1942) Generalleutnant (major general) ; (1943) General der Gebirgstrup-
pen (lieutenant general, mountain troops).

DEHNER

The defendant Ernst Dehner during the period September 1939-May 1945
was: (1940) commander of the 87th Infantry Regiment in Belgium; (1941-
1942) commanding general of the 106th Infantry Division during the cam-
paign against Russia and on occupation duty in Northern France; (1942)
commanding general of the LXXXII Infantry Corps; (1943-1944) command-
ing general of LXIX Reserve Corps in Croatia; (1944) Military Commander
Southern France.

Decorations

Silberne Spange zum Preussischen Eisernen Kreuz I. und II. Klasse [ Silver
clasp to Prussian Iron Cross 1st and 2d Class] , Infanterie-Sturmabzeichen
[ Infantry Assault Medal] ; Ritterkreuz des Eisernen Kreuzes [Knight's
Cross of the Iron Cross] ; Medaille “Winterschlacht im Osten” [Medal of the
Winter Battle in the East] ; Orden vom Heiligen Zvonimir [Order of the
Holy Zvonimir].

Promotions

(1936) Oberst (colonel) ; (1940) Generalmajor (brigadier general) ;

(1942) Generalleutnant (major general) ; (1942) General der Infanterie
(lieutenant general, infantry) .

LEYSER

The defendant Ernst Leyser during the period September 1939-May 1945
was: (1939-1940) commander of 169th Infantry Regiment during the cam-
paign against Poland, the Low Countries, and France; (1941) commanding
general of the 269th Infantry Division in Russia; (1942) commanding gen-
eral of the XXVI Corps in Russia; (1943-1944) commanding general of
XV Mountain Corps in Croatia; (1944-1945) commanding general of XXI
Mountain Corps in Albania.

Decorations

Spange zum Eisernen Kreuz I. und II. Klasse [Clasp to the Iron Cross
1st and 2d Class] ; Ritterkreuz des Eisernen Kreuzes [Knight's Cross of the
Iron Cross]; Deutsches Kreuz in Gold [German Cross in Gold].

780

Promotions

(1937) Oberst (colonel); (1941) Generalmajor (brigadier general);
(1942) Generalleutnant (major general) ; 1942 General der Infanterie (lieu-
tenant general, infantry) .

SPEIDEL

The defendant Wilhelm Speidel during the period September 1939-May
1945 was: (1939) chief of staff Luftflotte (Air Fleet) I during the cam-
paign against Poland; (1940) chief of staff Luftflotte (Air Fleet) II during
the campaigns against Poland, the Low Countries and France; (1940-1942)
commanding general and commander of the German Air Force Mission in
Rumania; (1942) Military Commander Southern Greece; (1943-1944) Mili-
tary Commander Greece; (1944-1945) commander of the Liaison Staff OKL
(Air Force High Command) Southeast; (1945) commander, Special Field
Police Regiment III.

Decorations

Spange zum Eisernen Kreuz I. und II. Klasse [ Clasp to the Iron Cross
1st Class and 2d Class ] ; various Rumanian and Bulgarian decorations.

Promotions

(1937) Oberst (colonel); (1939) Generalmajor (brigadier general);
(1940) Generalleutnant (major general) ; (1942) General der Flieger (lieu-
tenant general, air force) .

GEiTNER

The defendant Kurt von Geitner during the period September 1939-May
1945 was: (1939) commander of an infantry replacement regiment; (1940)
operations officer of Wehrkreis (Service Command) VIII; (1940) chief of
staff, XLV Infantry Corps during the occupation of France; (1941) at-
tached to staff of Army Group Center during the campaign against Russia;
(1942) chief of staff to the commanding general and commander in Serbia;
(1943) chief of staff to the military commander of Serbia and Military
Commander Southeast.

|

Decorations

Spange zum Eisernen Kreuz I. und II. Klasse [ Clasp to the Iron Cross
1st and 2d Class ] ; Kriegsverdienstkreuz II. Klasse [War Merit Cross 2d

Class'].

Promotions

(1936) Major der Reserve (major, reserve officer); (1940) Oberstleutnant
(lieutenant colonel) ; (1942) Oberst (colonel) ; (1944) Generalmajor (briga-
dier general).

Became a member of the Nazi Party in spring, 1938.

781

II. ARRAIGNMENT

Extracts from the official Transcript of Military Tribunal V in the matter
of the United States of America vs. Wilhelm List, et al., defendants, sit-

come 10 oraer.

The Tribunal will now proceed with the arraignment of the
defendants in Case No. 7 pending before this Tribunal. The Sec-
retary General will call the roll of the defendants. The defend-
ants will stand and answer their names when they are called.

[The Secretary General then called the roll of the defendants: Wilhelm List,
Maximilian von Weichs, Lothar Rendulic, Walter Kuntze, Hermann Foertsch,
Franz Boehme, Helmuth Felmy, Hubert Lanz, Ernst Dehner, Ernst von
Leyser, Wilhelm Speidel, and Kurt von Geitner.]

Mr. Denney: May it please Your Honor, the prosecution has
been advised by the custodian of the jail that since the serving
of the indictment on the defendant Franz Boehme, he has now
become deceased, and with that in mind we would request that
Your Honors strike his name from the list of defendants.

Presiding Judge Wennerstrum: It is the order of the Tri-
bunal that the name of the defendant just mentioned by counsel
be stricken from this indictment.

The Secretary General : May this Honorable Tribunal please,
the defendants are all present and in the dock.

Presiding Judge Wennerstrum: Mr. Secretary General and
Counsel, the Tribunal desires to make this comment and inquiry
at this time. We are advised that at a previous session and pro-
ceedings the indictment has been read to these defendants. This
Tribunal is desirous that a record be made at this time as to
whether or not these defendants desire that the indictment be
read again to them, and unless each of the defendants waive the
reading of the indictment it will be read again to the defendants
at this time.

Dr. Laternser: I am authorized to declare in the name of the
defense — I am Dr. Laternser, defense counsel for the defendants
Field Marshals List and von Weichs — that the defendants waive
the reading of the indictment.

Presiding Judge Wennerstrum : May I inquire of counsel as
to whether or not he is authorized to represent all the defendants
in the waiving of the reading of the indictment at this time.

Dr. Laternser: Yes, Mr. President, I am.

Presiding Judge Wennerstrum: The record may then show
that each of the defendants, by their counsel, unless otherwise

782

indicated here at this time, waives the reading of the indictment
again to them. There being no indication of the desire of counsel
or defendants that the indictment be again read, the record may
then show that the reading at this time is waived by all defend-
ants. Mr. Secretary General you will call the defendants one by
one for arraignment.

The Secretary General : Wilhelm List.

Presiding Judge Wennerstrum : Defendant Wilhelm List, have
you counsel?

Defendant List: Yes.

Q. Has the indictment in the German language been served
upon you at least 30 days ago?

A. Yes.

Q. Have you had an opportunity to read the indictment?

A. Yes.

Q. Have you read the indictment?

A. Yes.

Q. Defendant Wilhelm List, how do you plead to this indict-
ment, guilty or not guilty?

A. Not guilty.

Presiding Judge Wennerstrum : Be seated.

[At this point the other defendants were arraigned. Each was asked the
same questions as the defendant List, and each gave similar answers. All of
the defendants pleaded “Not guilty.”]

*******

Presiding Judge Wennerstrum : The pleas of the defendants,
as here made, will be entered by the Secretary General in the
records of this Tribunal. The Court or Tribunal desires to inquire
if there are any other matters which are desired to be presented
to this Tribunal at this time.

Mr. Denney : The prosecution has nothing to say.

Presiding Judge Wennerstrum: Do counsel for any of the
defendants desire to present any matters to the Court at this
time?

Dr. Laternser: The defense likewise has no request to make
at this time.

Presiding Judge Wennerstrum : This Tribunal is advised that
the Tribunal will be in recess now until 15 July, one week from
today.

We wish to state — and I am speaking for the Tribunal — that
we are desirous that this trial be expedited as promptly as pos-
sible. In making that statement, however, we do not intend, nor
will it be our purpose, in any way to limit either the prosecution
or counsel or any of the defendants. It will be the intention of

783

this Tribunal to carry on the proceedings as expeditiously as pos-
sible, keeping in mind at all times that the rights of the prose-
cution and the defendants will be respected in every degree.

The Tribunal, therefore, will be in recess until Tuesday morn-
ing, 15 July 1947, at 0930 hours.

784

III. OPENING STATEMENTS
A. Extracts from Opening Statement of the Prosecution 1

General Taylor: May it please Your Honor. This is the first
time, since the conclusion of the trial before the International
Military Tribunal, that high ranking officers of the Wehrmacht
have appeared in this dock, charged with capital crimes committed
in a strictly military capacity. The conviction and execution of
Keitel and Jodi, pursuant to the judgment and sentence of the
International Military Tribunal, gave rise to widespread public
comment, not only in Germany but also in the United States and
England. Since that time, there have been several other note-
worthy trials of German military leaders.

In the British zone of occupation, Generals von Falkenhorst 2
and Blumentritt 3 have been tried for the murder of prisoners of
war. General Sepp Dietrich and his subordinates have been
charged in the American zone with responsibility for the Mal-
medy 4 massacre. General von Mackensen and Maelzer faced a
British military court in Italy in connection with the Ardeatine
Caves massacre of Italians. 5 In Yugoslavia and Greece, Generals
Alexander Loehr and Friedrich Wilhelm Mueller have been tried
and condemned for war crimes committed in southeastern Europe.

Most recently, Field Marshal Albert Kesselring was tried by a
British Military Court in Italy. 6 The court found him guilty of
responsibility for the Ardeatine Caves atrocity, as well as for
other war crimes against Italians committed by troops under his
command in northern Italy. It sentenced him to be shot to death.
This sentence of capital punishment against one of the outstand-
ing military figures of the recent war again stimulated much
discussion, and encountered not inconsiderable criticism, particu-
larly in England. Whether or not as a result of such criticism,
about 10 days ago the British reviewing authorities commuted
the death sentences against Kesselring, von Mackensen, and Mael-
zer to life imprisonment.

1 Complete opening statement is recorded in mimeographed transcript, 15 July 1947, pp.
10-123.

2 Law Reports of Trials of War Criminals, selected and prepared by the United Nations
War Crimes Commission, London, vol. XI, p. 18, Case No. 61, "Trial of Generaloberst
Nikolaus von Falkenhorst."

3 Tried by British military court at Wuppertal, 25 March-1 April 1947, for war crimes and
found not guilty.

4 United States vs. Valentin Bersin, et al., the "Malmedy Case," D-A Case File No. 6-24.

5 Law Reports of Trials of War Criminals, op. cit. supra, vol. VIII, p. 1, Case No. 43,
"Trial of General von Mackensen and General Maelzer."

6 Ibid, p. 9, Case No. 44, "Trial of Albert Kesselring."

785

Because of the unusually deep interest which cases of this type
have aroused, not only in military and legal circles but throughout
the general public, and because the scope and sweep of this case
is much greater than any of the previous cases to which I have
referred, the prosecution may fairly be required, in opening this
case, to do much more than outline the evidence which will be
adduced in support of the indictment. Indeed, as this case pro-
gresses, I think it will rapidly appear that the evidentiary ques-
tions are of secondary importance. That the killings charged in
the indictment occurred, that they were carried out by troops
under the command of these defendants, and that they were in
fact ordered by the defendants will not, I believe, be denied. The
naked facts are terribly clear.

Nor, after the evidence is laid before you, can the true meaning
of this case be drawn from learned arguments by counsel, analyz-
ing and refining the laws of war as they are written in the Hague
Conventions and in textbooks on international law. Of necessity,
we will hear much discussion of hostages, and reprisals, and the
necessary qualifications of belligerent armed forces. But the
exposition of these technical problems of the law of land warfare,
important as it may be, does not reach to the heart of this or
similar cases in the year 1947.

The doubts which have been expressed concerning the wisdom
and value of trials such as this one arise from a variety of con-
ceptions and misconceptions. To some extent, these doubts are
the natural result of the passage of time. Hostilities in Europe
ended over two years ago, the devastated and stricken condition
of Germany has aroused sympathy, and there is general desire
to wipe the unhappy past from memory. So we hear it suggested
by some that the present plight of Germany should shield men
such as these from the consequences of crime, if criminals they
be. But Germany is not the only devastated and stricken land,
and for every crime there is not only a criminal but a victim. In
the minds of many peoples are memories so mordant that they
cannot be forgotten. If the course of justice is stayed, these
sores will only fester the longer and spread the wider. We can
not restore the moral fabric of Europe by laying a shroud over
unshriven and unburied corpses.

Other and quite different doubts have been raised by some
who, with a blurred vision of military discipline, suppose that
military men are a sort of race apart, who are not responsible for
their actions because they are expected to obey orders. But the
law and code of the German Army itself says that it is the duty
of every soldier to refuse to obey orders that he knows to be

786

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criminal. This may be hard for the ordinary soldier acting under
pistol-point orders from his lieutenant. It is far less difficult for
high ranking commanders such as the men in the dock. These
men are not named in the indictment because they are generals;
they are named because they are charged with the responsibility
for crimes. They must be acquitted if, under the law and the
evidence, that responsibility cannot justly be attributed to them,
but they cannot be acquitted merely because they are generals,
any more than they can be indicted for that reason alone.

More fundamental and more cogent, 1 believe, are doubts
of those who question the wisdom and justice of attempting, by
criminal prosecution, to enforce the laws of war with meticulous
precision. Wars, such people say, are not fought on the dueling-
ground, and a polished observance of ritual cannot be expected.
Furthermore, there is a general feeling, not without substantial
basis, that some of the laws of war as written in the Hague Con-
ventions are obsolete, and on both sides were honored only in the
breach. Then, too, it is felt, and rightly, that violations of the
laws of war are committed in the best regulated armies, and it
is therefore urged that the commanders should not be held to a
strict and rigorous account for occasional lapses. I think that
unarticulated doubts of this latter description underlie the criti-
cism leveled against the death sentence which was imposed upon
Kesselring, particularly criticism emanated from high ranking
Allied commanders who fought against him. The degree of
Kesselring's guilt is, of course, not at issue in this proceeding,
but in the course of it we will of necessity find occasion to draw
certain comparisons and contrasts between the charges which
were laid against Kesselring and those which are laid against the
defendants here in the dock.

This case will achieve international meaning and significance,
1 believe, only if we adopt a realistic and practical approach to
such questions. And I believe that such an approach has been
adopted in the framing of this indictment, in the selection of evi-
dence in support thereof, and in the basic theory of the prose-
cution's case. The prosecution fully recognizes that the laws and
usages of warfare must be altered and adapted to reflect the
developments in this terrible art which man has learned to prac-
tice with such appalling proficiency. We have not sought and will
not seek in this case to make murderers out of soldiers for the
violation of rules framed in 1907, if those rules today are out-
moded and generally disregarded.

787

So, too, the prosecution takes full account of the true nature
of modern warfare as it relates to the responsibilities of com-
manders. We would not have arrested the defendants, we would
not have requested that this court be constituted, and we would
not have brought charges against these men, if they were to be
accused of mere carelessness or responsibility for occasional or
sporadic crimes committed by their troops.

On the contrary, we charge that these men inaugurated and
executed a deliberate program of terror and extermination which
was boundless in its arrogant contempt for the inhabitants of
the lands which the Wehrmacht invaded and overran. It is per-
haps the most elementary principle of human intercourse — the
bare subsistence level of civilization — that human life should not
be destroyed needlessly, or merely because it is regarded as
inferior. This is not an elevated or noble principle, although the
entire structure of human dignity is built upon it. This principle
merely enunciates mankind's instinct of self-preservation, and its
observance protects man from self-destruction. It is so deeply
rooted in civilization that the world insists on its observance in
war as well as in peace, and the laws of war are, essentially,
nothing more than a gloss on this fundamental rubric. It is for
denying and undermining the very basis of civilization that these
men are indicted.

Let us turn, then, to the indictment in which the charges against
these men are set forth. Counts one and two of the indictment
relate to murders and other crimes committed against civilian
inhabitants of Greece, Yugoslavia, Norway, and Albania during
the German occupation of those countries. Count three charges
the killing, in violation of the rules of war, of prisoners of war
and other members of the armed forces of countries at war with
Germany, and of members of the Italian armed forces after
Italy's capitulation to the Allied nations. Count four accuses the
defendants of ordering and committing murders and other crimes
in furtherance of the “racial" and economic policies of the Third
Reich — the slaughter of Jews, the imprisonment and mistreat-
ment of other segments of the civilian population, and the depor-
tation of thousands to slave labor in Germany.

Count one, more particularly, charges the murder of many
thousands of civilians under the color of retaliation or “reprisal"
for attacks on German forces or military installations. As will
appear from the evidence, these killings were carried out pur-
suant to a plan and system, embodied in orders issued, distributed,
and executed by the defendants and others, which called for the

788

retaliatory killing of civilians at arbitrarily established ratios,
such as 100 civilians for every German soldier killed, and 50 for
each soldier wounded. Usually the Germans referred to victims
of these mass executions as “hostages.”

As I said at the outset, the proof of these acts will present no
difficulty. The evidence is all set forth in orders, reports, and
other documents issued and circulated by the defendants them-
selves. Lest Your Honors find it hard to credit what the written
word so starkly exhibits, the oral testimony of eyewitnesses will
also be spread on the record.

The laws of war do, of course, recognize that in certain cir-
cumstances belligerents may take steps by way of reprisal. The
taking of hostages, too, has been practiced between nations since
ancient times. The killing of hostages is a much more recent
development; it is not the emblem of an enlightened way of life,
and most of the precedents are found in history of the German
Army and its exploits during the First World War. Furthermore,
as will clearly appear, most of the victims who met their death
before German firing squads at Belgrade, or Kraljevo, or Athens,
or Klissura were not “hostages” in any true sense of the word.

We will, in due course, endeavor to set forth in some detail the
rules of war as they relate to “reprisals” and “hostages.” At
this point I wish to make only two observations. Both the London
Charter and Control Council Law No. 10 declare the killing of
hostages to be a violation of the laws of war. This declaration is
binding on the Tribunal and the prosecution alike, and the prose-
cution believes that it is an accurate statement of the law. But
the theory of the prosecution’s case under count one does not rest
on this rule. We may concede for purposes of argument that the
execution of hostages may under some circumstances be justified,
harshly as those words may ring in our ears. But the law must
be spared the shame of condoning the torrent of senseless death
which these men let loose in southeastern Europe.

Count two of the indictment speaks in terms of destruction
and devastation, totally unjustified by military necessity. Here,
too, the victims were the peoples of Norway, Yugoslavia, Greece,
and Albania, who saw their homes in flames, their towns and
villages erased, and their possessions looted and scattered.

Count three of the indictment is quite different from the first
two counts. The victims of the crimes charged in count three
were not civilians and noncombatants; they were, for the most
part, members of the Yugoslav and Greek armed forces who
continued to resist the German invader after the defeat of the
major units of the Greek and Yugoslav armies and the replace-
ment of their national governments by “puppet” governments or

German military occupational administration. Pursuant to
orders issued and executed by the defendants, these troops who
continued to resist were not recognized by Germany as belliger-
ents, and when captured were commonly denied the status of
prisoners of war and were shot or hanged. We will subsequently
discuss the rules of war pertaining to the qualifications of belliger-
ent armed forces.

Count three also charges other crimes against members of the
armed forces of various other allied nations, particularly in pur-
suance of the notorious German order of October 1942, under
which numerous Allied “commandos" were coldly murdered after
their capture. It also charges the murder of many officers and
men of the Italian armed forces at the time of and shortly after
Italy's surrender to the Allies.

Count four, finally, strikes a still more somber note. The crimes
charged therein were in no way related to military operations.
We find the defendants and their troops helping to “purge" south-
eastern Europe of the so-called “inferior peoples" such as Jews,
and “politically unreliable" individuals such as “democrats" and
“nationalists." We find them helping to enslave and deport the
inhabitants of these lands to join the millions of other unfortu-
nates from all over Europe who were sucked into Germany to
work for their conquerors in mines and factories. We see the
German Army in a shameful role as the servant and tool of
Himmler, Sauckel, and other Nazi worthies.

Such, in summary, are the charges in this indictment. The
Tribunal will observe, from the dates of the particular incidents
set forth as illustrations of the charges, that all four counts cover
the 3 14 years from April 1941 to approximately October 1944.
All four types of crime were committed throughout this period,
and often a single episode involved the commission of crimes
under all four counts. Consequently, in outlining the evidence
today and in presenting it during the next few weeks, the prose-
cution proposes to proceed chronologically, rather than by count.
We believe this will be conducive to a more orderly and intelligible
presentation. However, in presenting particular documents or
witnesses, we will, of course, specify which count or portion of a
count the particular piece of evidence supports.

Before taking up the evidence in more detail, it will be helpful to
spend a few moments in outlining the structure and organization
of the German military machine, and the way in which it functioned
in occupied countries, particularly in southeastern Europe. The
prosecution has already submitted to the Tribunal, and to defense
counsel, a brief memorandum on the organization of the German
Army, together with a series of charts showing the chain of com-

maud of the more important military units in southeastern Europe
and northern Norway, with several maps of Yugoslavia, Greece,
and Norway, and other mechanical aids to the understanding of
this case.* One of these charts has been enlarged for display on
the wall of the courtroom.

Dr. Laternser (counsel for defendant List) : Mr. President,
1 am sorry I have to interrupt at this moment. I am surprised
to hear right now the Tribunal has been presented by the prose-
cution with an information referring to the defense. We are
now in a criminal procedure. As far as I know, the person who
makes a statement has to prove that it is true. I don't know
now how the prosecution wants this information to be understood.
If it should be regarded as evidence before this Tribunal, 1 must
object to the information already submitted to this Tribunal, for
a summary of the prosecution is not a means of the evidence. We
know the criminal procedure, and we know that it consists of
evidence and documentary evidence. 1 cannot see from the infor-
mation that I have received, that the document in question has
been signed by anybody.

However, if it is merely information that is not evidence, then
informing the Tribunal by this material, as far as I know foreign
law, can only be right when the defense agrees with it. For infor-
mation of the Tribunal can merely be affected when everybody
agrees. In any case if this information is supposed to be evidence,
it has to be rejected. We are merely dealing with statements of
the prosecution which have now to be proved, for which evidence
has to be submitted. I just want to make an example now and I
shall soon finish. This information also refers to this chart,
Chart D. It is supposed to serve as information for the Tribunal,
to brief the Tribunal. The moment when I entered the Court I
saw two basic mistakes in this chart. The mistakes are in the
chart although in the first trial before the Military Tribunal the
position of the OKW was discussed at large.

From this sketch we can see that the OKW and the OKM and
OKH — they were supposed to be one group but that was never
the case. The OKW was merely a working staff of Hitler's and
if one regards the results of the first trial, this staff cannot be
put right or left in the chart beside that little box, that means
‘‘Hitler," this is a basic mistake.

I shall soon finish. The next mistake results from the fact
that, for instance, Army Group F is connected with a line sup-
posed to mean technical subordinates. That also is not correct.
I therefore ask the Tribunal to ask the prosecution that the in-

* The memorandum referred to was entitled “Basic Information,” and is reproduced in part

formation which was submitted by the prosecution be withdrawn
for the assumptions contained in this information the prosecution
will have to submit evidence.

General Taylor: May it please Your Honors, the document
in question is, as I stated quite briefly, not evidentiary. It is in
the nature of a brief. Dr. Laternser, who has been before the
IMT, is fully familiar with the procedure. There has been such
a brief submitted before every trial that has taken place in this
courtroom. It is not evidentiary. It is to enable the Tribunal
and defense counsel to follow the opening statements.

The matters contained therein will, to be sure, be supported by
documents which will be submitted during the prosecution’s case
in chief.

Presiding Judge Wennerstrum: The Tribunal, speaking
through the presiding judge, wishes to state that this document
which I now have before me was considered by the Tribunal as
merely informative. The members of this Tribunal are members
of courts in the States who have had many years of not only
trials but appellate experience, and I am certain that I speak the
thoughts of my associates when I say to counsel that we shall
only decide this case upon the evidence as presented.

It should be kept in mind that the members of this Tribunal
have been in this city, here and its surrounding country, for only
about one month. Naturally we are desirous, and it is necessary,
that we become informed on the procedure that is to be followed
in these cases. It is necessary that we learn about the type of
the case and the things that will be presented, but I assure counsel
for the defense, the defendants, and all other parties concerned
that the decision of this Court will be based solely upon the evi-
dence as presented, and after counsel for the defendants and the
defendants themselves have had a full and fair opportunity to
present any matters in rebuttal which may have been presented
on behalf of the prosecution.

You may proceed, General Taylor.

THE SUPREME COMMAND OF THE GERMAN ARMED

FORCES

General Taylor: When Hitler came to power in 1933, the
German armed forces (which then consisted only of the army
and navy, since the air force did not yet officially exist) were
controlled and administered by a cabinet department called the
Reich Defense Ministry. Under the Reich Defense Minister, at
that time von Blomberg, the highest officers of each branch of the
service were called respectively, the Chief of the Army Staff that

792

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being General von Fritsch, and the Chief of the Naval Staff,
Admiral Raeder.

In May 1935, when Germany started openly to overthrow the
armament restrictions of the Versailles Treaty, von Blomberg
was given the title of Reich Minister for War and Commander in
Chief of the Armed Forces, and von Fritsch and Raeder were
thereafter called the Commanders in Chief of the Army and
Navy, respectively. However, the German Air Force, which was
officially born at about the same time, was not subordinated to
von Blomberg. It was established as an independent institution
under Goering, who took the title of Air Minister and Commander
in Chief of the Air Force.

In February 1938, there was a general reorganization of the
German military set-up. Von Blomberg and Fritsch were both
retired, and Hitler himself took the title of Supreme Commander
of the Armed Forces (Oberster Befehlshaber der Wehrmacht).
At the same time Hitler created the Armed Forces High Com-
mand (Oberkommando der Wehrmacht, usually referred to as
OKW) , with authority over all three branches of the armed forces.
Wilhelm Keitel was installed as Chief of the OKW, and remained
in this capacity until the end of the war in 1945. The OKW was,
in effect, Hitler’s personal staff for all matters pertaining to the
armed forces, and Keitel’s function was that of Hitler’s executive
officer for the administration of the armed forces and the appli-
cation of Hitler’s policies.

As is shown by the chart on the wall* (chart “D” in the explan-
atory pamphlet which the prosecution has submitted), the three
components of the armed forces were directly subordinated to
Hitler and the OKW. Admiral Raeder continued as Commander
in Chief of the Navy (OKM) until 1943, when he was relieved
by Admiral Doenitz. Goering continued to head the air force
(OKL) until the last month of the war. As Supreme Commander
of the Army to replace von Fritsch, Hitler selected General (later
field marshal) Walter von Brauchitsch.

THE GERMAN ARMY

The German Army, needless to say, was by far the largest and
most important of the three branches of the Wehrmacht. Von
Brauchitsch continued as commander in chief only until Decem-
ber 1941, at which time Hitler relieved him and himself took the
title of Commander in Chief of the Army in addition to that of
Supreme Commander of the Armed Forces. This dual capacity
led to a merging and overlapping of the functions of OKW and

* Chart "D” is reproduced on p. 794.

793

Chart D — CHAIN OF COMMAND OF ARMED FORCES HIGH COM-
MAND AND ARMY GROUP F (CINC SOUTHEAST)

(August 1943-March 191,5)

794

OKH, and at times we may find it difficult to differentiate between
their respective responsibilities.

The field formations of the German Army were normally sub-
ordinated to OKH, although, as we will see shortly, as the war
progressed they were on numerous occasions subordinated to
OKW. The largest field formation in the German Army, as in
most others, was known as an “army group/' which was, ordi-
narily, a headquarters controlling two or more “armies."

Army groups and armies were usually commanded by field mar-
shals and Generalobersten, ranks which are the equivalent of a
five-star and four-star general, respectively, in our own military
hierarchy. A German “army," however, was sometimes com-
manded by a mere “general" which is the same as a lieutenant
general (three stars) in the American Army.

Below the “army" were the lower formations which followed
the same general pattern in the German Army as in others — in
order from top to bottom, came the corps and the division, and
then the smaller units such as regiments, battalions, and com-
panies. The important types of divisions were the infantry divi-
sion, the armored or Panzer division, and the motorized or Panzer
Grenadier division, but the Germans used a number of other
special types. In southeastern Europe, where many miscellaneous
units were employed, we will frequently encounter the mountain
division, the security division (“Sicherungsdivision," usually com-
posed of older soldiers), and the reserve division (usually com-
posed of units still undergoing training) . There were also infan-
try divisions formed from the personnel of the German Air Force
and known as German Air Force field divisions (Luftwaffenfeld-
divisionen) .

Side by side with the corps and divisions of the regular German
Army we find similarly designated formations of Heinrich
Himmler's SS. Not content with his powerful position as head of
the SS and of all German police forces, Himmler inaugurated the
recruitment and formation into military units of hundreds of
thousands of SS men trained and equipped for front-line combat
duty. This strictly military part of the SS was known as the
Waffen (Armed) SS, and by the end of the war it comprised no
less than 30 divisions, as well as several corps headquarters and
an army headquarters. Himmler's divisions were consecutively
numbered and carried special names. In southeastern Europe,
during the period covered and by this case, the 7th SS Mountain
Division “Prinz Eugen," the 8th SS Cavalry Division “Florian
Geyer," and several others were very active. During the early
part of the war, these SS soldiers were almost all volunteers,
frantically devoted to the ideals, if such they may be called, of the

8!W964— 51 52

795

SS. Later in the war a number of SS divisions were formed by
forcible conscription from the populations of occupied countries.
For some purposes, chiefly administrative in nature, the Waffen
SS units remained under Himmler's control, but for operational
purposes they were under the command of the German Army, and
their employment differed little from that of the regular divisions
of the army.

As I stated earlier, the field forces of the German Army were
normally under the OKH, but not infrequently, particularly dur-
ing the latter part of the war, they came to be subordinated
directly to OKW. This was particularly true in territories which
the German Army had overrun and where military occupational
authorities were established. In such regions, the Germans often
appointed a senior over-all commander, to whom the heads of the
army, navy, and air force units in that region were all respon-
sible. Such a commander, with local authority over all three
branches of the armed forces, was called an “armed forces com-
mander" (Wehrmachtsbefehlshaber). In southeastern Europe,
where the army was the all-important branch of the service, the
armed forces commander was almost invariably an army general.

While the armed forces commander had authority over all
units of the German armed forces in an occupied region, the ad-
ministration of the area, in conformity with German rules and
policies, was commonly entrusted to an army general designated
as “Military Commander" (Militaerbefehlshaber). He had the
primary mission of insuring security and order, and for this
purpose had at his disposal the German police forces and, often,
security divisions and regiments of the army. On matters of mili-
tary government policy, the military commander usually took his
orders direct from OKH, but as commander of the security and
police forces allotted to him, he was tactically subordinate to the
armed forces commander in his territory.

Himmler's police and intelligence empire also reached into the
occupied territories. Reflecting Himmler's leadership of both the
SS and the German police, a Himmler emissary in the occupied
territories was called a “Higher SS and Police Leader" (Hoeherer
SS- und Polizeifuehrer) , usually abbreviated HSSPF. His prin-
cipal functions were to control the local police authorities and
carry out other special missions of a security nature. The
HSSPF's remained personally responsible to Himmler, but for tac-
tical purposes were subordinated to the senior military com-
mander in their territory.

*******

796

GERMAN MILITARY POLICY WITH RESPECT
TO "HOSTAGES"

Before turning to the particulars of the evidence, and to put
this case in its proper setting, we may remind ourselves that the
war crimes of the German Army were not confined to southeastern
Europe. In particular, the practice of taking and executing so-
called “hostages” from the civilian population was instituted at
the very outset of the war, and was deliberately planned in
advance.

In July 1939, when plans for the invasion of Poland were being
laid, the High Command of the Army distributed to the army field
commanders a series of directives for the maintenance of security
in Poland. This initial step was relatively circumspect; the field
commanders were told that “hostages” could be taken, but that
their execution would have to be approved in each instance by
the High Command of the Army.

The subsequent history of this order might be styled “the rake's
progress.” About two months later, when Poland had been con-
quered, the German military commander in the Polish city of
Poznan ordered that :

“* * * hostages are to be taken from the Polish civilian popu-
lation in every village in which troops are billeted * * * In
the event of attacks on members of the Wehrmacht or persons
who are German by race, hostages are to be shot. Only senior
officers holding the rank of a division commander will issue
orders to shoot hostages.”

The “war diary” of a German rear area commandant carries
the story forward. Two weeks later, on 15 October 1939, two
hostages were shot in the village of Buk because a sentry had been
shot at. Three days later, according to the diary, the following
occurred in the Polish villages of Ottorowo and Samter :

In Ottorowo — “A carbine had been stolen, the room in which
the burglary was committed had been damaged, a swastika flag
had been torn down and the Polish Eagle put up. Sentence was
passed by a court martial of the chief of civil administration
and after a specified period of time had expired, 5 hostages
each were shot in Ottorowo and Samter. The execution took
place in the presence of the entire population. There were no
tears, and the fine of 10,000 zlotys imposed on the village of
Ottorowo was paid, probably with the help of the church.”

In Samter — “Catholic services may be conducted only once a
week * * *. The county governor intends to remove gradually

797

from his county the Polish intellectuals, the owners of iarge
estates and the clergy.

“A lieutenant, who is a district speaker for the Nazi Party in
civilian life, attends to the moral welfare of the troops.”

Under this beneficent moral tutelage rapidly emerged, in
fearful shape, the German inferiority complex. The Poles were
inferior peoples, but the Germans could not be quite sure that this
was really true until all the educated Poles had been removed.

The following year the same pattern was repeated in France
and the Low Countries. It is June 1940, and the defendant List,
with his 12th Army, is attacking across the Aisne River in France.
The commander of the rear area of his army gives the order
that —

“As soon as acts of sabotage — fires also belong in this cate-
gory — are found, hostages are to be taken. The arrest is to be
announced publicly. If the acts of sabotage are repeated, the
hostages are to be shot, according to the regulations previously
issued, after sentence by a court martial. Executions by shoot-
ing are to be reported to the 12th Army and anounced publicly.

“Belgian citizens, however, may be shot only with the consent
of the High Command of the Army.”

As the scourge of war spread from country to country, the
ways of the army grew even more savage. In 1941, as the Wehr-
macht threw itself into the Slavic countries of eastern Europe,
the Germans encountered peoples whom they held in contempt
born of fear. In the Balkans and Russia, they spread such death
and terror that the conscience of the world was made to reel and
on 25 October 1941, Franklin D. Roosevelt, who was the President
of a country still at restless peace, declared prophetically:* *

“The practice of executing scores of innocent hostages in
reprisal for isolated attacks on Germans in countries tempo-
rarily under the Nazi heel revolts a world already inured to
suffering and brutality. Civilized peoples long ago adopted
the basic principle that no man should be punished for the
deed of another.

“Unable to apprehend the persons involved in these attacks,
the Nazis characteristically slaughter fifty or a hundred inno-
cent persons. Those who would ‘collaborate’ with Hitler or
try to appease him cannot ignore this ghastly warning.

“The Nazis might have learned from the last war the im-
possibility of breaking men’s spirit by terrorism. Instead, they
develop their ‘Lebensraum’ and ‘new order’ by depths of fright-

y . £

* The New York Times, 26 October 1941, p. 1.

798

fulness which even they have never approached before. These
are the acts of desperate men who know in their hearts that
they cannot win. Frightfulness can never bring peace to
Europe. It only sows the seeds of hatred which will one day
bring fearful retribution.”

*\z *!• ^ ^ ^

THE INVASION OF GREECE AND YUGOSLAVIA

* * * * * * *

a. The Plan of Attack

sN # sjs & # *

b. The Invasion

# * ❖

c. Von Weichs and The 100 to I "Hostage" Ratio

Mr. Denney : As appears from the foregoing account, the three
principal military figures of the German campaign in southeast-
ern Europe were von Kleist and the defendants List and von
Weichs. After the capitulation of Yugoslavia, Kleist departed
almost immediately to head an armored group in the attack on
Russia. List remained as supreme commander of the armed
forces in the Southeast [Armed Forces Commander Southeast],
and his actions in this capacity will shortly be described.

The defendant von Weichs and his 2d Army were scheduled
for ultimate employment on the Russian front, but did not take
part in the initial attack. Von Weichs remained in Croatia until
the latter part of May, while List completed the conquest of
Greece and Crete. In the meantime, the puppet government of
Croatia, headed by Pavelic, was being established, and von Weichs
participated in the recruitment and organization of Croatian
militia units, known as “Ustasha” who were strongly anti-Serbian
and whom the Germans were counting on to maintain security
in Croatia.

Thereafter, von Weichs and his 2d Army headquarters departed,
and von Weichs did not return to the Balkans until August 1943.
Short as his stay was in the southeast in 1941, he left an indelible
imprint as the result of his methods of “pacification.”

Just after the German attack on the Soviet Union, the Russian
radio broadcast a report that, as a result of the alleged murder of
two German soldiers in Belgrade, 100 Serbs had been shot to
death. The defendant List, upon making inquiry, learned that no
such episode had in fact occurred in Belgrade at that time, but
that the Russian report was undoubtedly based on an episode
which had occurred in April 1941, in the course of von Weichs'

799

southward march. As a result of the incident, von Weichs had
issued, on 28 April 1941, the following order, distributed through-
out the 2d Army down to battalion level ( NOKW-1198 , Pros.
Ex. 5) :

“The increase in malicious attacks on German soldiers neces-
sitates most stringent countermeasures. Only immediate and
ruthless measures guarantee the maintenance of peace and
order and prevent the forming of bands.

“1. A division sent out a detachment to carry out the dis-
armament of a Serbian village. The leader rode on ahead with
another officer and a Wachtmeister [sergeant], whereupon he
was overtaken by a Komitatchi band (in Serbian uniform) and
was shot to death. His companions were seriously wounded.
This occurrence gives us cause to make the following state-
ments :

“a. After conclusion of the armistice there is no Serbian
soldier in the whole area who is authorized to carry arms.

“ b . Whoever is found in Serbian uniform with weapon in
hand transgresses the bounds of international law and is to
be shot to death immediately.

“c. If in any area an armed band appears, then even those
men capable of bearing arms who are seized because they were
in proximity of the band are to be shot to death, if it cannot
immediately be ascertained with certainty that they were not
connected with the band.

“d. The bodies of all persons shot to death are to be hanged
and left hanging.

“e. Arresting hostages after a surprise attack is wrong and
is by no means to be taken into consideration. On the contrary,
action is to be taken only according to letters cu-d.

“2. As preventative protection of the troops against such
malicious surprise attacks, I give the following orders :
*******

“d. In the endangered villages, placards are to be posted
wherein the population is notified of the serious consequences
to be expected from surprise attacks (the posters will be sent
separately) .

“e. In all localities of the endangered area which are occu-
pied by troops, hostages are to be taken immediately (from all
classes of the population!) who are to be shot to death and
hanged after a surprise attack. This measure is to be made
public in the villages immediately.

“3. In cases of surprise attacks on the troops, the division
commanders should examine in detail whether the troop leader

800

in question is to be blamed. In the reports of the division,
regarding encountered surprise attacks, there should always
and immediately be a statement to the effect that the attacks
were atoned by ruthless measures and account be given as to
the manner employed.”

The placards which were posted in Serbian villages as a result
of this order read as follows (NOKW-1 1 51 , Pros . Ex. 7) :

“By a mean and malicious surprise attack, German soldiers
have lost their lives. German patience is at an end. As atone-
ment, 100 Serbs of all classes of the population have been shot
to death. In the future, 100 Serbs are to be shot, without
consideration, for every German soldier who comes to harm as
a result of a surprise attack conducted by Serbs.”

Irrelevant as any such circumstance might be, there is nothing
to indicate that von Weichs received any directive or suggestion
from above calling for the issuance of any such order. It appears
that he conceived the order in his own mind and issued it on his
own initiative. It epitomizes the German terror which raged in
the Balkans for the next 3*4 years. It embodies the two funda-
mental policies which List and his successors applied: that the
enemy should be denied even the bare right of continued resistance
and his troops no longer be recognized as belligerents entitled to
the protection of the laws of war, and that attacks against Ger-
man soldiers should be suppressed by executing civilian “hostages”
at the astonishing ratio of 100:1. The only important respect in
which subsequent practice departed from von Weichs’ precedent
was that his injunction that “hostages” should not be arrested
after an attack, but should always be taken in advance and exe-
cuted after the attack, was found to present serious inconven-
iences. With a required ratio of 100:1, it was impossible to keep
enough hostages on hand to meet all contingencies, and in subse-
quent months the Germans repeatedly transgressed this rather
formal and academic restriction which von Weichs had laid down.

THE OCCUPATION — LIST AND KUNTZE

(April 1941-August 1942)

*******

a. The Partition of Yugoslavia and Greece

* * * 5fC * * *

b. Structure of The German Occupational Administration

*******

May it please Your Honors. We now take up the discussion of
the activities of the defendants List, Foertsch, and the deceased
Boehme during the period April-October 1941.

801

The defendant List was an able protagonist in fields ideo-
logical as well as military. This is indicated in a letter of 28
April 1941, written by Alfred Rosenberg, who was later appointed
Reich Minister for Incorporated Eastern Territories, to Martin
Bormann. Part of this letter stated * ( 071-PS , Pros . Ex. UB) :

“Art objects generally do not come into the question as far
as the Balkans are concerned, although there are Free Masonry
archives and Jewish libraries and other relevant research bod-
ies. In my opinion, only the same attitude as that prevailing
in occupied French territory can be taken, and what I requested
was really only an expansion of an already existing regulation.
For with Field Marshal List, and likewise with the General-
quartiermeister [chief of supplies] of the army, the work has
already been begun and my men are already at work with these
circles in Belgrade. And by command of Field Marshal List,
as well as of his deputy general, these men will also be employed
in closest relationship with the Security Service (SD) in
Salonika. As you know, Salonika is one of the largest Jewish
centers.”

The capitulation was barely finished; yet List, the soldier, was
making himself a party to the “cultural” work of the Third Reich.

Early in September 1941, List determined that matters in
Serbia required a more forceful executive authority in that terri-
tory. With this in mind, List teletyped to the OKW and the
High Command of the Army requesting that Boehme, at that time
Commanding General of the XVII Mountain Corps, 12th Army,
be assigned with his staff as Plenipotentiary Commanding Gen-
eral in Serbia with supreme authority in that sector, directly re-
sponsible to List. List regarded Boehme as being “especially
suited” for the position because he had “excellent knowledge of
conditions in the Balkans.” This request was answered by a
Hitler order of 16 September 1941 in which List was charged
with the task of suppressing the insurgent movement in the
southeast area, and Boehme was designated as Plenipotentiary
Commanding General in Serbia with executive power, directly
subordinate to List. All military and civilian offices in Serbia
were instructed to comply with Boehme’s orders.

Upon receipt of the Hitler order, List, on 19 September 1941,
advised the Military Commander in Serbia, the LXV Corps Com-

* Rosenberg and Bormann were tried and convicted in the case before the International
Military Tribunal. The reference in the letter concerns the activities of the “Einsatzstab
Rosenberg.” In its judgment, the IMT stated the following concerning Rosenberg and the
‘‘Einsatzstab Rosenberg”: “He organized and directed the ‘Einsatzstab Rosenberg/ which

plundered museums and libraries, confiscated art treasures and collections, and pillaged private
houses.” Trial of the Major War Criminals, op. cit. supra, vol. I, p. 295.

802

mand, and the German general in Zagreb [ Agram] , who was the
liaison between the Croatian government and the Armed Forces
Commander Southeast, that Boehme had received entire executive
power in Serbia and that “all command authorities and forces of
the army existing there or to be transferred there are subordi-
nated to him.” He stated further, “instructions for the carrying
out of operations for the necessary protective measures will be
given by me only to General Boehme, who is responsible for their
being carried out.”

One of the first acts of Boehme in his new post, for which List
had stated he was “especially suited,” was the publishing of an
order which he directed that the recipients destroy after dis-
semination, and which reads as follows (NOKW-1 0^8, Pros .
Ex. 68) :

“In March of this year Serbia shamefully broke her friendship
treaty with Germany, in order to strike in the back the German
units marching against Greece.

“German revenge stormed across the country.

“We must turn to new, greater goals with all our forces at
hand. For Serbia, this was the sign for a new uprising to
which hundreds of German soldiers have already fallen in sacri-
fice. If we do not proceed here with all means and the greatest
ruthlessness, our losses will climb to immeasurable heights.

“Your mission lies in carrying out reconnaissance of the
country in which German blood flowed in 1914, through the
treachery of the Serbs, men and women.

“You are the avengers of these dead. An intimidating exam-
ple must be created for the whole of Serbia which must hit the
whole population most savagely.

“Everyone who wishes to live charitably sins against the
lives of his comrades. He will be called to account without
regard for his person and placed before a court martial.”

So it was that List’s corps commander, now Plenipotentiary
Commanding General in Serbia, set the same keynote as had
von Weichs for the program of subjugation through terror which
was to pervade in the Balkans for the ensuing years of the war.

Now that the chain of command has been clearly established,
let us return momentarily to List’s request of 14 September
directed to OKW. His communication starts with the words
“threatening development of the over-all situation in Serbia
demands energetic measures.” Later on, he states, “the present
command regulations are based on peaceful conditions and are
unbearable under the present turbulent combat conditions.” This
request having been received at OKW, another order was issued,

803

in addition to the Hitler order appointing Boehme mentioned
above. After reciting that it had been established that the oppo-
sition to the occupying power was the result of a centrally directed
mass movement and that each incident of insurgence against the
German Wehrmacht, regardless of individual circumstances, must
be assumed to be of Communist origin, the order directed
{NOKW-258, Pros. Ex. 53) 1 :

“In order to stop these intrigues at their inception, severest
measures are to be applied immediately at their first appear-
ance, in order to demonstrate the authority of the occupying
power and in order to prevent further progress. One must
keep in mind that a human life practically counts for naught
in the affected countries and a deterring effect can only be
achieved by unusual severity. In such a case, the death penalty
for 50 to 100 Communists must in general be deemed appro-
priate as retaliation for the life of a German soldier. The
manner of execution must increase the deterrent effect. The
reverse procedure, to proceed at first with relatively easy pun-
ishment and to be satisfied with the threat of measures of in-
creased severity as a deterrent, does not correspond with these
principles and is not to be applied.”

This was the answer of the OKW to List's plea for help in “turbu-
lent combat conditions.” The order was passed on by List to his
subordinate units.

Not satisfied with the initial directive with reference to the
killing of innocent people in the southeast, an additional OKW
order, signed by Keitel, came down on 28 September 1941. In
this order it was directed that military commanders have hostages
available at all times in order that they might be executed when
German soldiers were attacked. The complete ruthlessness of the
second Keitel order may be seen from the following provisions
(NOKW-458, Pros. Ex. 69) : 2

“Because of attacks on members of the Wehrmacht which
have taken place lately in the occupied territories, it is pointed
out that it is opportune for the military commanders to have
always at their disposal a number of hostages of different politi-
cal persuasions, i.e.,

“1. Nationalists.

“2. Democratic middle class.

“3. Communists.

“It is of importance that among these are leading personal-
ities or members of their families. Their names are to be

1 Parts of this document are reproduced in section VB.

2 This document is reproduced in Section VB.

804

published. In case of an attack, hostages of the group corre-
sponding to that to which the culprit belongs are to be shot.”

Nowhere in this order did Keitel attempt to enlighten his com-
manders as to the means to be employed in identifying the “cul-
prit.” It was a matter of little concern to him, and the evidence
will show that it concerned his field commanders even less. The
manner in which this order was complied with will be detailed at
greater length in the evidence which is presented to the Tribunal.

The 100:1 ratio having been proclaimed, Boehme, on 4 October
1941, ordered the execution of 2,100 persons, to be taken from
the concentration camps at Sabac and Belgrade. Those to be ex-
ecuted were primarily Jews and Communists. These killings were
reprisals for the deaths of 21 German soldiers. On 9 October
1941, the Chief of the Security Police in Belgrade reported that
2,100 Jews and gypsies were being executed by the Wehrmacht
in reprisal for 21 German soldiers shot to death. The Security
Police in this operation were to make available to the Wehrmacht
the required number of victims. The report continues that 805
Jews and gypsies were taken from the camp in Sabac and the
balance, 1,295, were taken from the Jewish transit camp in
Belgrade.

On 9 October 1941, Boehme informed List of “an execution by
shooting of about 2,000 Communists and Jews in reprisal for 22
murdered men of the 2d Battalion of the 521st Army Signal
Communication Regiment.” A partial report of this action was
made to List and Boehme by a major who commanded the 2d Bat-
talion of the 521st Army Signal Regiment. The major's report
enclosed a report of the lieutenant who commanded the company
which carried out a portion of this action. The lieutenant's report
is dated 13 October 1941. The report is sordid in its detail;
the shooting of 2,200 Jews in the camp at Belgrade had been
ordered on 8 October 1941. The action took place on 9 October
in a forest seven miles from Kovin, and on 11 October near the
Belgrade shooting range on the road to Nis. No detail was over-
looked, films and pictures were to be taken by an army propaganda
company. By issuing spades and other tools to the inmates who
were to be executed, the atmosphere of a working party was simu-
lated. Only three guards were placed on each truck to further
allay the suspicions of the wretched victims. The prisoners were
happy to be leaving the camp, if only for a day of work in the
fields. The soldiers were able to execute only 180 on 9 October,
and 269 on 11 October. The executions were accomplished by
rifle fire at a distance of 12 meters. Five shots were ordered for
the shooting of each prisoner. Articles of value were removed

805

under supervision. They wei'e later sent to the Nazi People's
Welfare or the Security Police in Belgrade. The lieutenant
reported that the attitude of the prisoners at the shooting was
calm and that following the killings the troops “returned to their
quarters satisfied.”

It was while List was Armed Forces Commander Southeast that
concentration camps were introduced in that area. The military
commander in Serbia, in a letter of 22 June 1941, spoke of a
“concentration camp which I had been ordered to erect.” He
spoke of the future inmates as “Communists and other criminal
types.”

List himself recommended concentration camps in an order of
5 September 1941. He stated that the relatives of those people
resisting the army should be transported to concentration camps.

Often has it been urged that the German Army had no knowl-
edge of concentration camps, or at best that they had nothing
to do with them. It has been the repeated refrain of the German
military men that such matters were beyond the scope and beneath
the concern of a soldier, and that such affairs were handled by
Himmler and his subordinates. In the Southeast, the army not
only had knowledge of the camps; they were in charge of some
of them. An order of 11 September 1941 {NOKW-1H1, Pros.
Ex. 46 ) will show that the concentration camp Serbia, in Belgrade,
was made subordinate to the military commander of Serbia on
that date.

Again, in an order of 18 September 1941 ( NOKW-1222 , Pros.
Ex. 58) issued by Bader of the LXV Corps, it was stated in con-
nection with mopping-up operations that “the entire male popu-
lation above 14 years of age is to be arrested, to be sent to a con-
centration camp w r hich the division will install, and to be detained
there.”

Boehme, in an order of 23 September 1941 to the 342d Divi-
sion (NOKW-194, Pros. Ex. 61), directed that unit to “* * * evac-
uate Sabac by surprise attack on the entire male population
between the ages of 14 and 70 and take them to a concentration
camp * * *.”

Boehme further concerned himself with the transfer of the Jarak
concentration camp from the 342d Division to the 64th Police
Reserve Battalion in an order of 27 September 1941 ( NOKW-193 ,
Pros. Ex. 66), which specified in addition that inmates would
receive half rations — only 200 grams of bread daily and 200
grams of meat weekly.

Early in October, Boehme ordered that a concentration camp
be located in the Zasaviza area, capable of holding 30,000 inmates.
This camp was to be “guarded by restricted forces and closed

806

from the outer world.” In the same order, he directed that
inmates from another concentration camp be brought to work
on this new construction project.

The evidence will show how the army used the concentration
camps as collection points for innocent people who were to be
channeled into German industry or to be used for such other
purposes as might be directed.

Two final references to List concern his later acts prior to his
post being handed over to the defendant Kuntze. On 4 October
1941 ( NOKW-203 , Pros . Ex . 70 ) 1 he issued an order in which it
was directed that men in insurgent territory who were not
encountered in battle were to be examined, and “if they are
only suspected of having taken part in combat, of having offered
bandits support of any sort, or of having acted against the
Wehrmacht in any way, to be held in a special collecting camp.
They are to serve as hostages in the event that bandits appear, or
anything against the Wehrmacht is undertaken in the territory
mopped up, or in their home localities, and in such cases they are
to be shot.” This was in keeping with the spirit of an earlier
order which he had issued on 5 September 1941, which provided
in part for (NOKW-08U, Pros . Ex . U2 ) 2 —

“Immediate ruthless measures against the insurgents, then-
assistants, and their relatives (hangings, burning down of
localities participating, increased arresting of hostages, depor-
tation of family members into concentration camps).”

We are now turning to the period from October 1941 until
August 1942 where we are primarily concerned with the defend-
ants Kuntze, Foertsch, the deceased Boehme, and the believed
to be deceased Bader.

The defendant Kuntze succeeded to the command of the 12th
Army late in October 1941. The measures which had been started
under his predecessor, List, were continued with increased sever-
ity. Kuntze received periodic reports of the activities of the
troops under his command. These reports recited the seizing and
killing of “hostages” and the wanton destruction of villages.

On 2 November 1941, a situation report was signed, on behalf
of Kuntze, by the defendant Foertsch, This report gives as one
of the reasons for the unrest in the southeast the fact that
(. NOKW-1152 . Pros . Ex. 139) —

“* * * the refugees expelled from the separated territories"

1 Ibid.

- Ibid.

“ The reference is to the territories which, after the German occupation of Yugoslavia, were
'separated” from Yugoslavia.

807

(from Croatia — 110,000 ; from Hungary — 37,000 ; from Bulgaria
— 20,000) were transported across the frontier without means
and without sufficient care.”

The report then set forth the methods to be followed by Kuntze’s
subordinates in combating opposition. It was stated that he had
charged Boehme with the suppression of Serbia and Croatia. He
ordered that “all prisoners taken during combat or mopping-up
operations will be hanged or shot to death” and that “for the
time being, arrests are to be made only for purposes of interro-
gation or to supplement reconnaissance.” In addition, he directed
that all male civilians be temporarily collected in camps.

Late in November or early in December 1941, Kuntze went to
Belgrade. Some notes were made on this trip. One of the items
which concerned Kuntze was the question of resettlement. This
memorandum provided (NOKW-1 150, Pros . Ex. 156) :

“The question of the resettlement of women and children of
the insurgents, as well as other unreliable elements, is still being
examined. The retention of these people in Serbia, south of the
Danube, does not appear to be practical. There are still diffi-
culties with respect to shelter, rations, and guard which oppose
the transfer into the Banat.

“All Jews and gypsies are to be transferred into a concen-
tration camp at Semlin (at present there are about 16,000
people there) . They were proved to be the bearers of the com-
munication service of the insurgents.”

On 20 December 1941, Kuntze’s subordinate, the Plenipotentiary
Commanding General in Serbia, Bader, who had succeeded Boehme
earlier in the month, issued an order to his troops. After reciting
that there had been proper compliance with the prior orders con-
cerning reprisals, he stated (NOKW-850, Pros. Ex. 161) :

“The reprisal measures will be continued further. In order
to exclude any existing doubts concerning them, I am referring
to the fact that these groups of prisoners are to be differen-
tiated.

“Reprisal prisoners are persons who, for reason of their
attitude, are destined for reprisals for German human lives,
for example, Communists not encountered with weapons,
gypsies, Jews, criminals, and the like.

“Hostages are persons who play a role in public life and on
the basis of their personalities exercise a certain influence on
the population in their realm of activity. They comprise the
most varied strata of the population. They guarantee with

.

808

their lives the public peace, order, and security in their part
of the country.

“Prisoners of the unit are persons who are taken in the
course of an operation, as suspicious. They require a further
examination by the administrative subarea headquarters au-
thorities. They will either be released or transferred to the
reprisal prisons.”

It is clear that there was to be no change, save for the worse,
under Kuntze as Armed Forces Commander Southeast, in the
matter of “hostage” takings and retaliatory killings.

The policy as set forth was implemented by further orders of
the German division commanders. Hoffmann, the Commanding
General of the 342d Division, on 6 January 1942 issued an order
to his troops which provided that “Communists, in any event,
will be shot immediately after a short interrogation; only in
special cases will they be brought back to the division”.

A particularly harsh policy was established by Kuntze, made
effective on 6 February 1942 (NOKW-945, Pros . Ex. 174) * He
called for detailed reports on countermeasures taken by sub-
ordinate units. He further directed that persons who loitered
around the battlefield should be considered as having taken part
in the battle and therefore should be shot.

With the advent of spring, Kuntze anticipated increased activity
from the people of the occupied area. With this in mind, he
issued an order on 19 March 1942 (NOKW-835, Pros. Ex. 184).
He emphasized the degree of importance which he attached to
the regimental commanders and stated that Himmler’s security
units and the Serbian police should cooperate closely with the
German troops. He directed that “captured insurgents are to be
hanged or shot as a matter of principle. If they are used for
information purposes, this only postpones their execution.” In
an appendix to the same order he advised, “It is better to liquidate
50 suspects than lose one German soldier.” He dictated that in
areas which had been mined, the Serbian population, among
others, should be used to clear the terrain. And there appeared
again the 100 :1 ratio in the event that death came to any German.

Later in March, on the 23d, Kuntze sent a teletype to Bader
(NOKW-943, Pros. Ex. 187) in which he agreed that insurrection-
ists not captured in battle should be deported for work in Nor-
way. He failed to explain how the identity of those to be de-
ported could be established.

Kuntze had more to say about forced labor on another occa-
sion. Bader, in an order of 25 March 1942 {NOKW-930, Pros.

* This document is reproduced in section VB.

809

Ex. 188), mentioned an earlier order of Kuntze, dated 18 March,
which directed that “Persons who are arrested because of being
suspected of supporting or collaborating with the insurgents
are to be handed over to concentration camps, where they are
to be interrogated (by the SS) who will make further disposition,
for example, handing over as forced laborers in the German in-
terest sphere.”

From this same order, it is evident that three concentration
camps were presently available in this area at Sabac, Belgrade-
Delinjo, and Nisch, with a fourth to be opened shortly at Semlin.

Kuntze advised OKW from time to time of the success of the
measures he was directing in the southeast. On 7 April 1942,
he informed them that since 1 September 1941, 11,522 of the
enemy had been shot in battle and 21,809 persons had been
killed in retaliation measures. On 23 June 1942 Kuntze advised
OKW that a total of 37,477 had been shot in battle or in way of
reprisals as of that date in Serbia and Croatia. He mentioned
that the mayor of Crete had been slain and, in retaliation, persons
sharing in the guilt and a number of hostages were shot.

Kuntze left his post as Armed Forces Commander Southeast
on 8 August 1942, but before leaving he knew that there had
been more than 45,000 people killed by the Germans in Serbia
and Croatia during the period September 1941 through July 1942.
He knew that people were being deported to labor in the German
war economy, both in the Reich and in Norway. He knew that
he had done his work well and faithful^ in the service of Hitler.

Mr. Fenstermacher will take up the opening statement at this
time, Your Honors.

Mr. Fenstermacher: May it please the Tribunal, we take up
now the occupational period, August 1942 until August 1943.

By 8 August 1942, when General Alexander Loehr replaced
Kuntze as Commander in Chief of the 12th Army and Armed
Forces Commander Southeast, the German reprisal machinery
was completely set up and functioning. It remained only to keep
the existing machinery running and, if possible, to increase the
efficiency with which the retaliation measures were carried out.

The defendant Foertsch, who had served as chief of staff under
both List and Kuntze, remained in the same capacity throughout
the 12-month period of Loehr’s supreme command in the South-
east. General Bader, the commanding general in Serbia under
Kuntze, also stayed on. A few weeks before Loehr arrived in
the Southeast, the defendant Geitner arrived in Serbia as chief
of staff to Bader.

To pacify the civilian inhabitants, Bader and Geitner divided
Serbia into various field [administrative] headquarters areas

810

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which correspond in tlie main to tiie larger cities and important
strategical points throughout the country. The field headquarters
areas were in turn subdivided into smaller territorial units known
as district commands [headquarters]. This was the organiza-
tional machinery which General Bader utilized for the security
of Serbia.

When a telephone line was cut, or railroad tracks torn up, or a
mine blow up, or shipping on the Danube mined — whether by
partisan units in the course of legitimately planned actions or
by unknown persons — the reprisal machinery swung into action.
The district command notified field headquarters of the incident
and field headquarters in turn notified Geitner, Bader’s chief of
staff in Belgrade, suggesting that certain stated reprisal meas-
ures be taken in retaliation. Geitner and Bader would either
approve the proposals of field headquarters or issue new orders
to cover the case. In either event, the district command was
notified, orders were issued and carried out, and reports were
sent back up through the established channels. The reprisal
orders were almost invariably the same. To insure the consistent
execution of the German program and to prevent delay, as well as
tc avoid the confusion that might ensue from the exercise of
individual decision by the German mind, a retaliation code was
established for the guidance of all concerned. An arithmetical
table was so easy to follow — even the slowest and dullest battalion
or company commander could comprehend its ready meaning.
What did it matter that the ratio of Serbs to Germans seemed
high or that innocent people would necessarily suffer for the
deeds of persons whom the Germans were unable, or did not even
try, to apprehend? Weren’t the Germans a superior race, and
wasn’t it better that 99 innocent men — either hostages or so-called
reprisal prisoners — should die than that one guilty person go free?

With the precedents that Weichs, List, Boehme, Kuntze, and
Foertsch had established before them, Bader and Geitner on 28
February 1943 devised a more detailed table of retaliation quotas
to take care of an increased number of factual possibilities which
new conditions had brought to the fore ( NOKW-382 , Pros. Ex.
263)*—

For one German, or one Bulgarian occupational corps member,
killed, 50 hostages are to be executed.

For one German or one Bulgarian occupational corps member
wounded, 25 hostages are to be executed.

For the killing of a person in the service of the occupying
power, regardless of his nationality, or a member of the Serbian

* Document reproduced in section VB.
893964—51 53

811

Government, high Serbian official (district supervisor or mayor),
official of the Serbian State Guard, or member of the Serbian
Volunteer Corps, 10 hostages are to be executed.

For the wounding of any person in the previous categories, five
hostages are to be executed. For an attack against important war
installations, up to 100 hostages are to be shot to death, according
to the seriousness of the case.

That these retaliation quotas were no idle German boast or
mere paper threat is made quite clear by the literally dozens and
dozens of both orders and reports that poured into, and went
out from, Geitner’s own hands.

15 December 1942 — “Five Draja Mihailovic* followers shot in
retaliation for the German sergeant shot to death near Zlotov.”

25 January 1943 — “Since the Organization Todt driver Braun
had not returned as of 1 January 1943, a total of 50 followers
of Draja Mihailovic and Communists were shot to death.”

10 February 1943, near Gr. Milanovac — “25 Communists ar-
rested, 10 shot to death in reprisal for murder of mayor.”

On 14 May 1943, the war diary of the 104th Jaeger [Light]
Division contained this entry :

“The division applies to the commanding general and com-
mander in Serbia for the shooting to death of 125 Communist
hostages and the evacuation of the villages of Kamendo and
Dubona in reprisal for the attack on the railroad patrol
Drazanj.

“7 August 1943 — As retaliation for the surprise attacks in
the Runjkovao-Leskovac district, on 16 and 28 July 1943, in
which two members of the German customs border guard were
killed and two were wounded, 150 Communist reprisal prisoners
were shot.

“15 August 1943 — 15 Communist reprisal prisoners shot in
retaliation for murder of a mayor and the burning of thresh-
ing machines.

“16 August 1943 — In retaliation for the killing of the leader
of a mixed harvesting crew on 7 August 1943, 50 Communist
reprisal prisoners were shot.”

On occasion they even returned to the earlier and higher quota
of 100:1 for each German soldier killed. A proclamation by
Bader of 19 February 1943 stated (NOKW-1027, Pros. Ex. 258) :

“In the forenoon of 15 February 1943, a passenger car of the
German Wehrmacht was attacked by partisans on the road

* Serbian Nationalist partisans under the command of Draja Mihailovic; generally referred
to in the contemporaneous documents as “D.M. Followers.”

812

Petrovac-Pozarevac near Topanica. The four passengers, two
officers, one noncommissioned officer, and one enlisted man were
murdered and robbed. The vehicle was set on fire.

“As a reprisal measure 400 Communists were shot to death
today in Belgrade. The village of Topanica was partly burned
down. Several hundred persons arrested, who were seized in
the district Pozarevac, will not return to their villages but
will be given worthwhile employment elsewhere.”

The perpetrators of the attacks for which reprisal measures
were instituted were frequently unknown to the Germans. Some-
times, however, the attacker was caught in the act or his identity
became known. But even knowledge or apprehension of the guilty
offender did not rule out or prevent the application of the retalia-
tion table — the hostages had to be shot anyway in order to set an
example. The following entry for 24 December 1942 in the war
diary of the 704th Infantry Division, a unit subordinate to
Bader, makes this last fact very clear:

“Lieutenant Koenig, executive officer, 2d Battalion, 724th
Grenadier Regiment, and 2d Lieutenant Dr. Engelhardt, bat-
talion physician of the 2d Battalion, 724th Grenadier Regiment,
were fired on in Mladenovac at 1413 hours by a 20-year-old
woman who was assumed to be a Communist. They were
severely wounded (shot through lung and stomach) and immedi-
ately transferred to the military hospital in Belgrade. A
former Chetnik leader was also shot to death by the woman
while trying to arrest her. Later she shot herself. The 724th
Grenadier Regiment ordered the encirclement and search of
Mladenovac. Seventy-two men and 52 women were arrested.
A part of the population fled immediately after the attack on
the officers. Local police and Serbian state guards participated
in the military measures without causing trouble. Three pistols
were found.

“The division applies for authorization to shoot in reprisal
50 hostages and/or people detained as retaliation prisoners.”

The reply of Bader and Geitner to the division's incredible appli-
cation is apparent from the entry in the division's war diary on
the following day:

“Forty-nine men and one woman shot to death in Mladenovac
for the attack on two officers of the 2d Battalion, 724th Grena-
dier Regiment. 2d Lieutenant Dr. Engelhardt died in the
military hospital in Belgrade. The division applies for authori-
zation to shoot an additional 25 hostages and/or all people de-
tained as retaliation prisoners from the district of Mladenovac.

813

The execution will be carried out by the SD in Belgrade.”

At least 75 innocent persons, perhaps more if the division’s
request to shoot all retaliation prisoners held in the Mladenovac
district was honored, were killed in spite of the fact that the
guilty party was known. This was German justice in Serbia
on Christmas Day, 1942. Can any doubt remain that German
policy in the southeast, as in Poland and the East, was designed
and calculated to decimate the native populations for generations
and generations?

But if the saboteur or attacker was really unknown — that is,
if even the easily convinced Germans were too baffled to hazard a
guess as to the “culprit’s” political affiliation — then an equal
number of both Draja Mihailovic followers (D.M.’s, as they were
called) and partisans would be shot. The German reports are
full of examples of such arbitrary and indiscriminate executions.
On 27 June 1943, Bader ordered ( NOKW-37 U, Pros. Ex. 282) :

“Fifteen Communist and 15 D.M. hostages are to be shot to
death in reprisal for the attack and destruction of mines
near Aleksinac on 8 June 1943.”

Another order of the commanding general and commander in
Serbia, this time of 13 August 1943, stated (NOKW-H8, Pros.
Ex. 305) :

“In retaliation for the murder of two and the wounding of
two German soldiers by insurgents on the highway at Pozare-
vac, 9 August 1943, 150 reprisal prisoners are to be shot.

“Since the political origin of the perpetrators cannot be defi-
nitely established, 75 D.M. and 75 Communist reprisal prisoners
are to be executed.”

To cope with the gigantic problem of hostage supply posed by
this wholesale reprisal program, the district commands turned
for assistance to their well-trained and widely-experienced co-
workers in mass crime, the SD. With the help of native collab-
orators the SD had prepared lists of “suspects” — relatives of men
who were absent from a village or immigrants without valid
reason from another village, “persons of a hostile attitude,” and
the like — the definition was uncertain and ambiguous, and no one
quite knew how his name got on or remained off the lists. One thing,
however, was sure — there was no investigation, and no trial and no
appeal from the German judgment of inclusion. From time to
time, as the available supply of hostages dwindled in the face
of an astounding number of mass executions, troops of the district
commands and SD detachments would stage “special actions” to
round up additional victims. Large hostage camps were con-

814

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structed at various strategic places — their locations were changed
from time to time to make for more efficient administration and
quicker executions — and when the orders came, the hostages would
be shot, either at the hostage camp itself or on the site of the
attack. In general, retaliation victims were supposed to be resi-
dents of the village in or near which the attack allegedly occurred.
But if a sufficient supply of hostages or retaliation prisoners was
not on hand in a particular district camp, then the balance of per-
sons necessary to satisfy the hostage quotas would be shot from
the central camp in Belgrade. With a macabre fascination for
mathematics and a consuming passion for everything smacking
of rote, the Germans enforced the code firmly, precisely, exactly —
no matter where the hostages were from.

Two examples will suffice. On 28 May 1943, Bader issued
the following order to 610th Field Area Headquarters (NOKW-
341, Pros. Ex. 275) :

“A total of 100 D.M. hostages is to be shot to death in retalia-
tion for the murder of three members of the Russian Protective
Corps near Konarevo, wounding of a member of the Russian
Protective Corps near Ivanjica on 11 May, and for the murder
of two members of the Serbian Volunteer Corps near Vezania.

“Since D.M. hostages are not available at the present time in
the camp of 610th Field Area Headquarters, they are to be
made available from other camps by the commander of the
Security Police.”

On the same day, 28 May 1943, Bader signed and Geitner
distributed a similar order to 809th Field Area Headquarters
(NOKW-341, Pros. Ex. 275) :

“One hundred and fifty Communist hostages are to be shot
to death in retaliation for the murder of three members of the
German customs border guard near Vucje on 15 May 1943.

“Since there are no Communist hostages available at present
in the camp of Field Area Headquarters Nis, they are to be
made available from other camps by the Commander of the
Security Police.”

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Nor was there ever any jurisdictional conflict between the
district commands and the SD over the sheer physical task of
executing these thousands of retaliation victims. Generally, losses
of the military were avenged by the military themselves. Police
units usually furnished the execution squads in reprisal actions
for their own losses, as well as for attacks on other soldiers and
installations under German protection. Both groups were ready
and willing to participate in the mass massacres. If a particular

815

hostage camp was administered by the SD rather than by a
temporarily under-manned district command, then its personnel
would supply the trigger men. There was no set rule; both
organizations cooperated to do the job at hand. The orders for
the actual executions, however, invariably came down through
the military Bader-Geitner chain of command. The SD did not
exercise a concurrent jurisdiction. In those matters it was
subordinate to, and took orders from, the Wehrmacht commander
in whose field area headquarters or district area it was stationed
and operating. An entry in the war diary of the 104th Jaeger
[Light] Division for 4 April 1943 states (NOKW-1013, Pros .
Ex. 286) :

“By order of the Commanding General and Commander in
Serbia, in reprisal for the murder of the Organization Todt
man shot to death by Communists 8 km. south of Pozarevac,
78 hostages were shot to death in Pozarevac by the SD.”

While Geitner was having conferences with SD leaders and the
subordinate troop commanders on such diverse subjects as condi-
tions at the Semlin concentration camp where “up to 100 persons
were dying daily,” on “the execution of invalids, sick or pregnant
women, or people over 60, male or female,” if they took part in
combat, “with or without weapons,” against the Germans, on the
deportation of the male population of whole areas for labor ir
Germany, and kindred subjects, Foertsch at supreme headquarters
also kept occupied with current business. To him and to Loehr
came the daily, weekly, and monthly reports from their vast
southeastern empire — from Bader and Geitner in Serbia, from
General Lueters, the German commander in Croatia, from General
Brauer* on the Island of Crete, and from various other com-
manders on the Peloponnesus Peninsula.

Croatia by this time was in an uproar. Tito's partisans were
growing stronger by the minute. By the end of 1942, they could
boast of having called a Congress, of a government of their own
which exercised control in an area 250 km. by 100 km. of a regular
civil and military administration within that area, and of an
armed force numbering almost 100,000 men skillfully organized
into brigades, battalions, and companies. Lueters was completely
unable to cope with the problem. He gave the usual orders for
the execution of hostages, the burning of villages, and the arrest
of “suspects” and relatives of “bandits,” but to no avail. As the
practical minded Lueters himself pointed out, the existing tech-
niques and methods were wrong since “in any case of cleaning-up

* Former Governor of Crete. Tried and sentenced to death by a Greek military court at
Athens, 9 December 1946. History of the United Nations War Crimes Commission. (His
Majesty’s Stationery Office, London 1948), p. 575.

816

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or retaliatory action against the civilian population the innocent
are seized, the guilty having earlier taken to the woods.” “Nor
should captured partisans be shot as a matter of course,” pleaded
Lueters. “Perhaps if they were given fair treatment many
of them would desert — at least that new approach ought to be
tried.”

But Lueters' complaints fell on deaf ears at headquarters.
Orders continued to come through Foertsch from Loehr that they
would assume responsibility for what their subordinate com-
manders did, that no one would be held responsible for having
employed harsh methods, that “individual soldiers should not be
prosecuted for being too severe with the native inhabitants,” and
that commanders who failed to take retaliatory measures for rea-
sons of negligence or softness would be held responsible. In spite
of the fact that the German intelligence service reported the pres-
ence of partisan troop units, with the names of their leaders,
the various insignia of rank worn, the size of their battalions and
companies, their weapons, and other details, captured partisans
continued to be executed after a brief interrogation. The reports
are full of references to “temporary prisoners,” as the partisans
captured-but-not-yet-executed were called —

3 August 1942 — “In mopping-up, 39 temporarily arrested
persons shot.”

5 August 1942 — “In west Bosnia another temporarily arrested
eight persons shot.”

17 August 1942 — “In Syrmia, 90 persons shot in reprisal,
65 temporarily arrested.”

29 August 1942 — “In Samarica, 262 persons temporarily ar-
rested, of this number 20 shot immediately.”

There was no trial, hearing, or court martial for these men
who fought as honorable and patriotic soldiers for their nation.
The orders distributed to the lowest of units were unmistakably
clear. Lueter's directive to his troops of 7 January 1943 is
representative — “Execute and hang partisans, suspects, and civi-
lians found with weapons. No formal proceedings are necessary.”
No wonder that Foertsch could report to the High Command of
the Army in Berlin that up to 24 August 1942, 49,724 and up to
8 September, 52,362 “insurrectionists” had been shot in battle
or by way of reprisals.

Just as it was in Serbia, the German directives in Croatia
were by now the old familiar ones — comb whole areas, seize the
entire male population capable of bearing arms for deportation
to Germany for labor, choose “unreliables” as hostages to be
executed in case of attacks on convoys or communication lines,

817

do not enter into negotiations with the enemy for the exchange of
wounded, the better treatment of prisoners, nor recognition of
their belligerent status. Instead, treat captured partisans as
criminals to be hanged after all possible information had been
drained from them, with or without torture. In Croatia, just as
in Serbia, the revolt continued to gain momentum. By the
middle of 1943, with the Allies advancing in the Mediterranean
theater, the German commanders realized that what was going
on in the Balkans was really a war.

During the period of General Loehr’s supreme command, on
1 January 1943, the 12th Army went out of existence, or more
accurately from a practical standpoint, it changed its name.
Loehr’s headquarters was redesignated Army Group E, and until
August 1943, it remained the supreme headquarters for the south-
east theater. The change, however, was of little practical signifi-
cance ; Loehr continued to command and Foertsch continued as his
chief of staff. In Serbia, Bader and Geitner were still subordi-
nated to Loehr.

The structure of Army Group E is shown on chart “C” of the
prosecution’s pamphlet.* To almost every rule there is an excep-
tion, and the Court will note that here we have an army group
to which no army was subordinated; instead, this army group
commanded a heterogeneous collection of corps, military com-
manders, “fortress” commanders, and others. The tide of war
was soon to bring about still another departure from orthodox
German military structure. The German terror had not brought
peace and order in southeastern Europe; Serbia was as restless
as ever, and the partisan forces in Croatia and Greece were
growing stronger all the time. On 10 July 1943, the Allies landed
in Sicily, and it became apparent that soon they would be on the
Italian mainland, and in a much better position to bring material
assistance to the national armies of liberation in Greece and Yugo-
slavia. Faced with these new and unfavorable developments, in
August 1943 the Germans reorganized the entire command struc-
ture in southeastern Europe. New faces appeared and a familiar
face reappeared. We will now turn to the story of this last and
most important occupational period.

THE OCCUPATION, VON WEICHS AND RENDULIC

(after August 1943)

The year 1943 was known to the American public as the “end
of the beginning.” To the German Army, reeling under the heavy
blows of Allied military might, it was indeed the “beginning of

* Chart “C” is reproduced on p. 819.

818

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819

Chart C— ORDER OF BATTLE OF ARMY GROUP
(ARMED FORCES COMMANDER SOUTHEAST)

(January- August 1943)

the end.” The invasion of North Africa and Montgomery's ad-
vance from Egypt in November 1942 wore followed by the crush-
ing surrender of von Paulus' crack 6th Army before Stalingrad.
Rommel's retreat and defeat in Libya and Tunisia was followed by
the invasion and rapid conquest of Sicily. Finally it was Italy's
turn. With the invasion of the Italian mainland, the long despised
and very tired Italian accomplice collapsed in thankful relief.

a. Reorganization of the Southeast Command

Reorganization of the command structure was the first step
taken towards meeting the new challenge in southeastern Europe.
From the Russian front where, as commander of an army group
he had won promotion to the rank of field marshal, Hitler called
Maximilian von Weichs. A new army group headquarters, Army
Group F, was established in Belgrade, as the vehicle for von
Weichs' supreme command over southeastern Europe. The de-
fendant Foertsch, the veteran of service as chief of staff under
List, Kuntze and Loehr, now came to Serbia as chief of staff to
von Weichs.

The new command structure which von Weichs headed is shown
in the chart on the wall.* Loehr remained in Greece, and his
headquarters continued to be called Army Group E, thus creating
the double anomaly of an army group with no “army” beneath it,
and which was itself subordinated to another army group. From
this time on, Loehr's headquarters concerned itself exclusively
with Greece and the Aegean Islands, and Loehr reported to von
Weichs. The two corps commanders under Loehr were the de-
fendant Felmy, who had returned to Greece in July, and the
defendant Lanz, who had been a divisional commander during the
original invasion of southern Yugoslavia and who arrived in
Greece in August.

Although von Weichs maintained his headquarters in Belgrade,
so far as military operations against the partisans were con-
cerned, the center of gravity was shifting toward Croatia. To
cope with Tito's partisans and to protect the long Dalmatian
coastline, exposed as it was to an Allied invasion or raids from
nearby Italy, the headquarters of the 2d Panzer Army, which
had been engaged on the Russian front, was moved to Croatia.
To command this army, and to carry out the difficult mission of
reestablishing order in Croatia and safeguarding it against enemy
attacks, the German High Command selected the defendant
Lothar Rendulic. An Austrian, whose mother was Croatian,
Rendulic had learned much about the Balkans by the sheer process
of growing up under the Hapsburgs and living in the center of

* See chart "E” in section IVB.

820

their sprawling empire. He had joined the Austrian Nazi Party
in the early thirties at a time when it had been declared illegal,
and was regarded on all sides as a “Nazi General." In 1938, he
was the Austrian Military Attache at Paris, and after the annexa-
tion of Austria he transferred into the German Army in which
his rise was phenomenally rapid. At the outbreak of the war
in 1939, he held the rank of colonel. He participated in the Polish
campaign as chief of staff of an infantry corps, and thereafter
was given command of a division during the campaign against
the Low Countries and France. He commanded another infantry
division in Russia, and in 1942, he was given command of a corps ;
in the same year, he reached the rank of General der Infanterie
(equivalent to a lieutenant general in the American Army). His
outstanding combat record, which had won him the highest Ger-
man decorations, brought him to Hitler's attention and undoubt-
edly led to his appointment as commander of the 2d Panzer
Army. In the spring of 1944, he was promoted to Generaloberst
(full general). Two more of the defendants, Leyser and Dehner,
now appear for the first time in this case as corps commanders
under Rendulic.

In Serbia another new face was introduced. General Hans
Felber had led troops in battle and seen occupation duty in France.
Von Weichs and Rendulic thought Bader too old and routine
minded for the requirements of the new situation ; he was relieved
as military commander of Serbia and replaced by Felber. The
defendant Geitner, however, carried on as Felber's chief of staff.

Felber’s jurisdiction, however, was broader than that which
had been exercised by Bader. Just as von Weichs, as commander
of all the armed forces in the Southeast was the superior of
Loehr in Greece and Rendulic in Croatia, so Felber, with the title
of Military Commander Southeast, was now made the superior
of the German military commanders in Greece and Montenegro
and of the “Plenipotentiary Generals" in Croatia and Albania.
The military commander in Greece, beginning in August 1943,
was the defendant Speidel. Accordingly, in this final phase of the
case, all of the defendants except two (List and Kuntze) are
involved.

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Von Weichs, of course, had supreme authority over the entire
organization — over Rendulic and Loehr as tactical commanders,
and over Felber and his subordinate “military commanders."
Geographically speaking, his responsibilities were far greater than
those which had been borne by List, Kuntze, and Loehr before
him. He had barely arrived in the Balkans when the Italian
capitulation occurred, and he was immediately confronted with
the task of disarming and rendering harmless the Italian forces

821

in Croatia, Montenegro, Albania, and Greece. At the same time,
he had to take over occupational responsibility for the areas which
the Italians had theretofore controlled.

b. The Italian Surrender

The new leadership was on the defensive from the start. Sicily
had been invaded by the combined British and American forces
in July. A fortnight later Mussolini was deposed and the King
appointed Marshal Badoglio to conduct the war as new head of the
Italian Government. But in 6 more weeks, on 8 September 1943,
the Italian armed forces surrendered unconditionally. Under the
terms of the armistice all of the Italian armed forces were to
cease hostilities of any kind against the forces of the United
Nations and to withdraw to Italy immediately from all areas in
which they were currently engaged.

The German High Command was not caught unaware by this
development. Italy’s defection had been anticipated, and when
it actually occurred, the Germans proceeded with synchronized
swiftness to attack and disarm their one-time colleague. The
orders from Berlin were clear and precise. Italian soldiers who
wished to continue fighting on the German side were to retain
their arms, to be accorded treatment “completely consistent with
their honor,” and to receive rations “based on those of the
Germans.” Indeed, they even were to receive 50 percent of the
German pay corresponding to their ranks. German gratitude
and generosity to the “faithful” was boundless. Those Italians
who did not wish to continue fighting for the Germans were to
be disarmed and made prisoners of war. They, however, would
not have to endure the long, boring days of waiting in the
barbed-wire enclosures, which is the legal fate of prisoners of
war. Instead they were to be turned over to the Plenipotentiary
for Labor Allocation and the Reich Minister for War Production
and Armament, so that their strength and skill might be fully
utilized in the German war production.

For those Italian soldiers who dared to obey the orders of
their own supreme commander and resisted German forces either
actively or passively, a more select fate was in store. The
officers of all Italian troop units who let their arms fall into the
hands of insurgents or in any way made common cause with
insurgents were to be shot to death after summary court martial ;
the noncommissioned officers and men of such units were to be
taken away for labor employment.

The Fuehrer’s order was put into savage execution. In a
matter of hours, von Weichs had ordered its distribution to all
tactical commanders in the theater. In some cases the order was

822

passed on in expanded form. Rendulic, for example, gave more
detailed instructions to his troops : Should an incorrigible Italian
division destroy its arms and supplies, besides the individual
“culprits,” one officer of the divisional staff and 50 men of the
division should be shot to death; any individual Italian soldier
gelling or giving away his arms to civilians or destroying them
without explicit orders would be shot to death ; any Italian soldier
arriving at his embarkation station without his weapon was to be
shot to death together with his responsible unit leader; for every
motorized vehicle made useless, one officer and 10 men would be
executed. In a matter of days, 51 hesitant Italian divisions had
been totally disarmed by but 17 German divisions. However, at
least two whole Italian divisions resisted, while thousands of
individual Italian soldiers, noting the treatment meted out by
the Germans to resisters and surrendered alike, took to the hills
to join the partisans.

The reports poured in — from the division to the corps, the
corps to the army, the army to the army group, and the army
group to OKW in Berlin:

“On 27 September 1943, from Split on the Dalmation coast —
City and port occupied, 3 generals, 300 officers, 9,000 men of
the Italian ‘Bergamo’ Division taken prisoners; officers to be
shot to death according to the Fuehrer order.

“30 September and 1 October 1943 — 3 generals shot in Split
after summary court martial; 45 more guilty Italian officers
shot in Split.

“From the 7th SS Division on 29 September 1943 — The
Italian General Fulgosi has been convicted for delivering arms
to the partisans and sentenced to death.

“From the XXI Mountain Corps on 9 October 1943 — Opera-
tions against the Italian ‘Taurinense’ Division concluded in the
main, reprisal measures carried out against 18 officers.

“From the XXII Mountain Corps on 23 September 1943 —
General Gandin and all his staff captured, special treatment
according to Fuehrer order. The following day — General Gan-
din and all officers have been shot.

“From the 100th Light Division on 15 November 1943 —
Reprisal measures are being taken against the two Italian
colonels (the la and Ha of the 9th Italian Army) captured
near ‘505’.

“On 13 September 1943, from von Weichs, the Supreme
Commander Southeast — Execution of General Roncaglia, Com-
mander of the Italian XIV Army Corps, ordered in case of
further opposition.”

823

This calculated slaughter of captured or surrendered Italian
officers is one of the most lawless and dishonorable actions in the
long history of armed combat. For these men were fully uni-
formed. They bore their arms openly and followed the rules and
customs of war. They were led by responsible leaders who, in
repelling attack, were obeying the orders of Marshal Badoglio,
their military commander in chief and the duly authorized political
head of their nation. They were regular soldiers entitled to
respect, humane consideration, and chivalrous treatment.

c. Croatia

With the disarming and liquidation of the Italians complete,
the Southeast Command returned to the continued prosecution of
its principal mission of pacification. In Croatia the task of
defeating the guerrillas was alone a big order. To do that and
quiet the civilian population in addition was far more difficult.

To begin with, the puppet Croatian Government of Ante
Pavelic was of no help whatever. Its inefficient and poorly or-
ganized national militia, led by Kvaternik, was unable to maintain
order within the country, let alone protect the vital German supply
lines running from the Reich through Croatia to Serbia and
Greece. Even for the German troops of the 2d Panzer Army,
it was a full time job to keep the supply and communication
routes open. In an earlier period, the enemy had waged guerrilla
warfare ; it was the only way he could fight, and the way which
suited him, his resources, and the topography of the country
best. He staged surprise raids on lonely German outposts or
under-manned garrisons, he mined bridges, derailed trains, cut
telegraph wires, fired supply depots, and exploded ammunition
dumps. That sufficed in an earlier time. Now after 2 years in
the hills he was experienced and well trained ; the Allies were on
the offensive and had supplied him with weapons, ammunition,
food, and clothing; he was expertly led and efficiently organized.
Now he was a real enemy, a belligerent of major proportions, and
a foe to be reckoned with in terms of large-scale operations and
over-all strategy.

To meet the challenge of the big and the new, the Germans had
only the small and the old. From the day in 1941 when the cam-
paigns against Greece and Yugoslavia had been declared ended
and the front line troops redeployed to the east, the southeastern
commanders had begged for replacements and reinforcements.
The southeast theater was continuously under strength through-
out the war. Yet always the same answer came — additional
troops cannot be spared from the decisive Russian front. But
not only were the troops in the Southeast too few; they were

824

also of inferior quality. They included many reserve troops who
were over age and jaded. Insufficient and inferior troops had
been the German problem from the beginning. In 1941 and
1942, they had met it the only way the heavy handed Germans
knew how to meet any resistance — by terror. In 1943 and 1944,
as unimaginative and blindly cruel as ever, they would meet it
in the same way.

The practice of seizing scores of hostages in each village in
which German troops were stationed or in the vicinity of which
German troops were operating was continued. In 1941, the
Germans had taken democrats, nationalists, and Jews as their
hostage victims. Now that most of those had been liquidated
they were choosing “Communists, ” “bandit suspects/' “bandit
helpers," or relatives of “bandits" as security pawns against
attacks. How did one distinguish a “Communist" from the rest
of the population? Only the SD, the Croatian police, or the
village quislings could answer that. If men thereby were victim-
ized by spiteful and gossiping neighbors, it was just unfortunate.

The pattern of terror and intimidation was simple. After the
Germans had entered a village, all of the inhabitants — old men,
women, and young children alike — were summoned to the central
square or market place. From a sound truck a German officer
would announce to the assemblage that there were partisan bands
operating in the vicinity. The Germans wanted information con-
cerning the size, location, and leadership of those bands, the num-
ber of men missing from the village, and the names of strangers
presently living in the village. Unless the inhabitants came
forward voluntarily with the desired information, other and more
drastic steps would be taken to procure it. When there were
no volunteers, priests, school teachers, small shopkeepers, or
farmers — sometimes just every third, fifth, or tenth man — were
called out of ranks and loaded in lorries for shipment to the
division's hostage camp at some distant central collecting point.
Whether to save one's husband, father, or son by revealing that a
neighbor's brother had joined the bands or was absent from the
village was a difficult choice for those who remained. Sometimes
men or women weakened. More often they just stood there —
some passive, others weeping, all hating.

The basic pattern of burning homes and villages was also
continued. Partisan bands moved from village to village, chang-
ing their bases of supply and operations as the Germans advanced
or retreated. As the Germans advanced on a village there might
be an exchange of fire, perhaps a few shots by retreating guer-
rillas. That the villagers had not asked the partisans to come,
had given them food and supplies only under protest, or were

825

powerless to resist their intrusion was of no moment to the
Germans. The inhabitants would be evacuated on foot to the
rear. Some of the aged would die en route; of the others some
would be executed as “bandit suspects” or “bandit helpers” after
screening by the SD ; the remainder would be sent to the Reich for
labor; the village would be reduced to rubble and ashes.

* * Jje * * * *

Not until late December 1943, four months after the inaugura-
tion of the new Southeast command, did a major reorientation
in theater policy take place. Minister Plenipotentiary Neubacher,
Ribbentrop’s top political advisor for southeastern Europe, had
long worried over the boomerang effect of the German occupa-
tional terror. After conferences with Weichs and his army
commanders, it was agreed that “the reprisal, penal, and revenge
measures practiced up to now must in the future, take into 1
account the new political objectives. ,, In cases of attacks or acts
of sabotage, the new principle was “to seize the perpetrator him-
self and to take reprisal measures only as a second course, if
through reprisal measures the prevention of future attacks is to
be expected.” Up until now the hangings and burning admittedly
had occurred first, and the search for the guilty only later. A
reversal in technique was a tribute, not to justice, but to military
expediency.

This order of the Supreme Command Southeast, 22 December
1943, is a remarkable document in many ways. It rescinded all
previous orders concerning hostage quotas. But though reprisal
quotas were no longer to be fixed, they were not at all prohibited.
Rather, the extent of the reprisal measures was to be “established
in advance in each individual case.” The order is also unique
because of its twisted and inconsistent language. It reads in
part as follows ( NOKW-172 , Pros . Ex. 379) :

“The procedure of carrying out reprisal measures, after a
surprise attack or an act of sabotage, at random on persons and
dwellings in the vicinity, close to the scene of the deed, shakes
the confidence in the justice of the occupying power and also
drives the loyal part of the population into the woods. This
form of execution of reprisal measures is accordingly forbidden.

If, however, the investigation on the spot reveals open or con-
cealed collaboration or a conscientiously passive attitude of
certain persons concerning the perpetrators, then these persons
above all are to be shot as bandit helpers and their dwellings
destroyed * * *.

“If such people as are guilty cannot be found, those persons

826

must be resorted to who, without being connected with the
actual deed, nevertheless are to be regarded as coresponsible.”

Why should persons not connected with the actual deed “never-
theless be regarded as coresponsible” ? When superior orders are
so incomprehensible and so in need of lower-level clarification, it
is not surprising to find one of Rendulic’s division commanders,
writing to his troops in the following simple, straightforward,
understandable language :

“All is right which leads to success. After 3 full years of
war in the Balkans each commander knows what is best.”

Not because of the new policy directive, but rather because of
tactical considerations arising out of the regular military nature
of the current war in the southeast, there was a noticeable change
in the Croatian picture in the early months of 1944. The change
was not so much a decline in the quantum of crime committed by
the German troops there, as it was a shift in emphasis from one
type of crime to another. The number of hostage hangings may
have decreased, but in their place were the many raids on par-
tisan concentrations, followed, after all military operations were
ended, by the deliberate burning of partisan hospitals and medical
supplies and, on occasion, by the merciless execution of their sick
and wounded patients. With periodical “purge actions” and
“punitive expeditions” throughout 1944, for example, units of
the “Prinz Eugen” and “Devil’s” Divisions, both subordinate to
Rendulic, went on a rampage of blood and cruelty that can only
be duplicated in history by the orgies of Genghis Khan. A dozen
or more inoffensive Dalmatian villages were burned and plun-
dered. Three villages were destroyed and more than 800 of their
inhabitants massacred on a single day. The troops machine-
gunned crowds which they, themselves, had assembled ; they looted
the dead, and then half burned the bodies on giant funeral pyres ;
they poured gasoline on live victims and then set them on fire;
they raped ; they pillaged ; and they slaughtered. What else could
be expected of men brutalized and incited to crime by the ruthless
orders of ruthless commanders?

* * * # * * *

For reasons of convenience and clarity in the statement of this
case, we have postponed our description of the German occupation
of Greece in order to treat it all together. Greece had been
stunned almost into quiescence during the first half of the joint
German-Italian occupation. Always a heavy food importing
country, Greece, with her outside sources of supply cut off and
her food stocks plundered by the Italian and German occupiers,

893964—51 54

827

faced national starvation. Hundreds died in the streets of Athens
daily, children with the bloated bellies of undernourishment could
be seen everywhere, and between August 1943 and October 1944,
the drachma declined from one-three hundredth to one trillionth of
its prewar value. With a population of slightly over seven
million people, Greece lost an estimated 300,000 of its inhabitants
because of the food shortage.

To a people accustomed to horses and carts, German mechanized
might was overwhelming. The military end had come with such
speed that it took some time before the Greeks could even enter-
tain the thought of rebelling against half-tracks, tanks, and air-
planes. “But”, as Lord Dunsany says, “in three thousand years,
freedom grows so hard that it is like a piece of rock at the core
of a mountain, that cannot be broken or ground away, and can-
not disappear ever.” In the latter part of 1942, at the time
of Stalingrad and the Allied victories in North Africa, the Greek
resistance movement began to gather strength. In Crete, an all
too familiar note was heard as early as November 1942, when the
German commander General Braeuer, instructed his commanders
to educate the troops “to show no mercy whatsoever to the
civilian population.”

As has been observed, up to August 1943, the greater part of
Greece was occupied by the Italians. But in November and
December 1942 and January 1943, Loehr’s reports to the High
Command of the Army began to contain an increasing number of
references to retaliation measures against sabotage and guerrilla
attacks in the German-occupied portions of Greece.

By June and July 1943, the situation in Greece had become
increasingly similar to that in Yugoslavia. Loehr’s reports to
the High Command of the Army are an accurate barometer of
the terroristic pattern —

“3 June 1943 — 10 Communists from a concentration camp
shot in Larisa as a retaliation measure.

“2 July 1943 — 4 villages burned down and 50 Communists
shot near Litochoron for attack on German sergeant and blast-
ing of railroad tracks.

“4 July 1943 — 87 suspects shot while trying to escape.

“5 July 1943 — 50 Greeks shot in Melaxa for sabotage of cable
lines.”

Just as in Yugoslavia, literally dozens of separate resistance
groups at first arose in Greece. But after a period of merger and
consolidation, two organizations of major importance were dis-
cernible — General Zervas and his approximately 10,000 “Edes”
troops in the Epirus section of western Greece, and the “Elas”

828

units, 15,000 strong in eastern Greece, the Peloponnesus Penin-
sula, Crete, and the islands.

To put down the Greek resistance the Germans tried the same
old methods. Terror and intimidation, hostages and reprisal
measures, hangings and burnings had failed to pacify Serbia and
Croatia. But the Germans, never humane and seldom smart,
knew no other course.

Greece during 1943 and 1944 was, like Yugoslavia, divided
theoretically into both operational areas and so-called administra-
tive areas, each with its own separate jurisdiction, organization,
and personnel. For the efficient execution of their respective
missions of pacification and security, it was, of course, quite
necessary that the regular tactical troops of Felmy and Lanz
should cooperate closely with the district and subarea [adminis-
trative area] police troops under Speidel's jurisdiction. This was
achieved both by personal contact of the major personalities
involved and by the regular interchange of information, daily
and weekly situation reports, and the like. Generally speaking,
the tactical troops confined their activities to regular military
engagements against the organized partisan bands. SpeidePs
police troops, on the other hand, were concerned for the most
part with the civilian population — seizing workers for forced
labor in the Reich ; deporting Jews from Crete, Corfu, Rhodes, and
the other islands; putting down strikes; executing hostages in
retaliation for acts of sabotage; and the clandestine killings of
German police and Quisling Greek mayors.

The orders of Felmy, Lanz, and Speidel in Greece were similar
to those issued by Rendulic, Dehner, and Leyser in Croatia and by
Felber and Geitner in Serbia. When attacks on troops, installa-
tions, and supply lines continued, notwithstanding a previous 10:1
“hostage” quota, the Germans, with their customarily inflated
notions of their own worth, promptly raised the quota to 50:1.
But even the execution of 50 civilians in retribution for attacks
by unknown persons did not completely satisfy General Lanz. On
25 October 1943, his 1st Mountain Division ordered that the 50:1
arithmetical key be applied even to German losses suffered in
regular military combat with the legitimately organized and uni-
formed guerrillas. After October 1943, the outmoded 10:1 ratio
was to be effective, only for the less serious deaths of such racial
inferiors as a “pro-German Greek or a Greek working for the
Germans.”

By mid-1943, the “Andartes,” as the Greek partisans were
called, were an enemy to be seriously reckoned with. The Ger-
mans, however, refused to grant full belligerent status to the
Greek resistance forces. Instead they waged war against the

829

Greeks in 1941 and 1942, by pressing the native population into
service on the side of the terror that was oppressing them. They
intimidated the inhabitants of peaceful villages into giving infor-
mation concerning the size and location of partisan troops. They
executed civilians in reprisal for the bombing of bridges and
tunnels, and for sabotage of communication lines. They labeled
men “bandits,” “Communists,” “bandit suspects,” and “bandit
helpers,” and killed them without benefit of investigation, trial, or
even summary court martial. In short, they resorted to every
trick and device that a tyrant, blinded by the fury of his own
insanity, might resort to. The reports to von Weichs and Foertsch
tell the story of the harvest of the German policy in Greece —

“29 November 1943 — In reprisal for band attack on the road
Tripolis-Sparta, 100 hostages shot at the scene of the attack.

“1 December 1943 — In reprisal for the killing of one German
soldier in Tripolis, 30 ‘Communists’ were shot.

“2 December 1943 — For attack on railroad bridge southeast
of Tripolis, 50 hostages hanged.

“3 December 1943 — 19 Communist reprisal prisoners shot in
revenge for the murder and wounding of Greek police.

“6 December 1943 — As reprisal for band attack southeast of
Gythion, 25 hostages shot.

“21 December 1943 — In the area of Volos 25 bandits shot to
death in reprisal for an attack on motor vehicles.

“25 February 1944 — 50 hostages from the hostage camp at
Tripolis shot to death on 23 February in reprisal for the
murder of an interpreter.

“9 March 1944 — In reprisal for strike agitation by Com-
munists, 50 Communists shot to death.

“25 March 1944 — 45 hostages shot in Corinth, 52 in Tripolis,
44 in Sparta.

“1 April 1944 — Special train Athens-Salonika hit mines. One
dead, 14 wounded. Tracks blocked only short while. The
execution of 70 Greeks at the site of the incident ordered.”

Lidice, the small Czech village which the Germans leveled to
the ground in 1942, stands today as a symbol of German savagery.
In Greece there are a thousand Lidices — their names unknown
and their inhabitants forgotten by a world too busy and too
cynical to remember. Greece has many small primitive villages
with 500 to 1,000 inhabitants who live in mud houses with
thatched roofs that have been lived in for centuries. There
are, for example, the villages of the Peloponnesus peninsula, which
were leveled to the ground in December 1943 during the notorious
“Operation Kalavritha.” Touched off by a report that “bandits”

830

in the vicinity had killed 78 German prisoners, troops subordinate
to General Felmy embarked upon a reprisal expedition that
lasted for 8 days before their senseless bestiality had been sati-
ated. Fourteen villages were completely destroyed and their male
inhabitants shot. Five hundred and eleven persons from Kalav-
ritha alone were executed. Whether the partisans had killed
captured German soldiers or not, there was no legal excuse, and
there can be no moral mitigation, for seeking wholesale and
indiscriminate revenge on the innocent.

Then there were the parallel tragedies of Klissura and Disto-
mon. On an April morning in 1944, partisan troops appeared
on the outskirts of Klissura and forbade the inhabitants to leave
the village. On the afternoon of the same day, about two miles
away, one German motorcycle was attacked and two German
soldiers killed. German reprisal methods being well known by
now, all the male population of the village fled in fear to hide in
the hills. Only old men, women, and young children remained
behind. About 4 o’clock that afternoon the 7th SS Panzer
Grenadier Regiment and Bulgarian Occupational Militia sub-
ordinate to its command, both under Felmy’s tactical jurisdiction,
threw a cordon around the village, searched the houses unsuccess-
fully for weapons and ammunition, and called all the people
together in the public square. Then the killing and burning
began. When it stopped, there were 223 victims lying in the
square — 50 of them children under 10 years, 128 women, and the
rest old men — Klissura was a mass of smouldering rubble.

The “blood bath of Klissura,” as the Germans so appropriately
entitled their own report on the affair, was too much for Minister
Neubacher to stomach. Not because it was inhumane but because
it would have serious political repercussions. Neubacher immedi-
ately protested to Weichs. He said (NOKW-469, Pros. Ex.
U82) * :

“It is sheer insanity to shoot babies, children, women, and
old people because heavily armed Reds had been quartered for
one night in their houses and had shot two German soldiers
in the neighborhood. The political consequences of such deeds
may be very serious. It is obviously easier to kill quite harmless
women, children, and old men than to hunt down an armed
band. I demand a thorough investigation of the matter.”

The investigation was ordered. The military whitewash of an
SS unit by a Wehrmacht field marshal came 2 months later when
Weichs wrote to Neubacher:

* Parts of this document are reproduced in section VB.

831

“The Greek witnesses cannot be believed. The village was
taken by storm, the inhabitants killed by artillery fire. There
was no retaliation action.”

Just 2 months after Klissura, in June 1944, troops of the same
7th SS Panzer Grenadier Regiment were involved in a similar
massacre at Distomon. From the Germans’ own lengthy report
of the incident the following facts appear. As a German company
approached the village, 18 Greek civilians were seen. Although
they did not fire on the Germans, 6 of the 18 “were shot while
trying to escape.” The remaining 12 civilians were arrested and
taken along with the company, which continued on to Distomon,
remained there for several hours undisturbed, and then set out
on the road from Distomon to Stiri. About 2 kilometers from
Distomon, 30 to 35 partisans, well entrenched in ridges over-
looking the road and armed with 8 cm. trench mortars that covered
the entire area, lay in ambush. Before the surprised company
could disperse and reorganize to return the sudden partisan fire,
the enemy had gone.

In defiance of orders restricting the initiation of reprisal meas-
ures to commanders of at least division commander level, the
company commander returned his troops to Distomon to carry
out retaliation against the villagers because they had not previ-
ously disclosed the presence and position of the “bandits.” A
report of a German Secret Field Police member, who was in
Distomon at the time, relates what happened after the troops
returned (NOKW-l*67, Pros. Ex. U8U) —

“After the troops returned to Distomon, the 12 prisoners who
were taken back were shot dead in the market place as a
reprisal measure.

“Subsequent to that, all people present in Distomon were
shot dead wherever they happened to be. At that time, I was
at the market place and was looking after our wounded in-
terpreter. As far as I observed events, 60 to 70 persons — men,
women, and children — were killed in the vicinity of the market
place. As far as I could see it, all were shot dead. I did not see
inhabitants being killed in any other way, i.e., beaten to death
by rifle butt or by pouring gasoline over them and setting
them on fire.”

Why were the 12 arrested Greek civilians killed? What had
they to do with the subsequent action by the “Andartes”? Why
were 270 inhabitants of Distomon killed? What was their crime?
Why did the Secret Field Police member feel obliged to say that
he had not seen any inhabitants “killed in any other way, i.e.,

832

beaten to death by rifle butt, or by pouring gasoline over them
and setting them on fire”? Was that the usual method of execut-
ing retaliation victims?

Again Neubacher was dismayed by the political, not the moral,
insanity of such actions. And again he protested — not to Himm-
ler, although SS troops were once more involved, but to Weichs,
the omnipotent master of the southeast, the commander of Wehr-
macht and SS troops alike. This time the investigation was more
lively, for it revealed that the regiment to which the company
involved was subordinate had knowingly issued a false official
combat report of its action against Distomon. According to the
regimental report the 18 Greek civilians opened fire upon the
company as it was approaching Distomon and were “shot while
trying to escape,” while Distomon itself was taken only after a
hard battle followed by a mopping-up operation.

From a sheer internal military standpoint, the SS company
commander had not only violated orders regarding the initiation
of reprisal measures. He had also deliberately issued a false
official report. But convinced that the “competent authorities
would also subsequently have ordered reprisal measures against
Distomon which would have necessitated sending at a later time a
strong mission with corresponding high fuel consumption” and
believing that the company commander's procedure was “merely
a transgression against formality and corresponded to a natural
soldierly feeling,” the regiment requested permission to handle
the matter “by disciplinary proceedings only.” General Felmy,
the corps commander involved, consented to the regimental re-
quest, and Field Marshal Weichs agreed. Neubacher was in-
formed. The case was closed.

The events of Distomon merit this somewhat detailed account
because in this single tragedy there is presented in microcosm
the evil of the Germany Army in Greece and in the whole south-
east during 4 years of ruthless occupation. It gives good insight,
for example, into the mental processes of a young German officer
of company grade, completely devoid of any notions of decency
and honor, thoroughly corrupted by the regulations, directives,
and orders handed down by his superiors. It reveals precisely
how war in the Southeast was fought, how the peaceful population
was drawn into the struggle, what a reprisal action specifically
entailed. It indicates how little the top military authorities did to
humanize the already existing techniques and methods of anti-
partisan warfare, how lax they were in disciplining their own
troops, how they shielded the guilty. Finally, it gives the lie to
one of the most important single myths that the Wehrmacht
seeks desperately to perpetuate — that the terrible crimes of troops

in the field were committed by SS units over whom the Wehr-
macht had no power or control, and that Wehrmacht commanders
constantly and vigorously protested to higher authorities against
the undisciplined excesses of the SS troops. Weichs knew the
inhabitants of Klissura had been killed in a reprisal, not a combat
action by the same SS unit which was later involved at Distomon.
He not only failed to remove the commanders responsible for that
atrocity before they could repeat the same criminal performance
at Distomon, but he lied to Neubacher in order to shield the
incident from criticism.

* * * * * * *

General Taylor: Your Honor, I desire to turn next to the
charges concerning devastation and deportation in northern Nor-
way. These are the charges embodied in the first specification of
count two of the indictment, and to examine them we must turn
our attention from the Balkans to the northern-most part of the
European mainland — the province of Finmark in northern Nor-
way. These charges concern only the defendant Rendulic.

Ever since the initial attack against Russia, the German 20th
Mountain Army had been situated in the northern part of Fin-
land, holding Petsamo and threatening Murmansk and the railroad
line from Murmansk south to Leningrad, one of the two main
avenues for the weapons and supplies which America and Britain
were sending to the Soviet Union. This army had been com-
manded, since January 1942, by General Eduard Dietl, who met
his death in an airplane crash in June 1944. Rendulic was
chosen to succeed him, and arrived in Finland in August. The
order of battle of the 20th Mountain Army, predominantly com-
posed of mountain troops, is shown in chart “G” of the prose-
cution’s pamphlet.*

Rendulic’s arrival in Croatia in August 1943 had been followed
almost immediately by the collapse of Germany’s Italian ally;
now he was to encounter a parallel situation in Finland. On
4 September 1944, the Finns capitulated to the Soviet forces, and
demanded that the Germans promptly withdraw their troops from
Finland. Rendulic decided to fall back across the northwestern
Finnish frontier into northern Norway.

The region in which this retreat took place involved the
northern-most province of Norway, which is known as Finmark;
the province just to the south is known as Troms. Including a
nomad population of Laplanders, the population of this area
numbers approximately 62,000, most of whom live in small ports
and villages along the heavily indented coastline, and make their

* Chart “G” is reproduced on p. 835.

834

Chart G— ORDER OF BATTLE OF THE 20TH MOUNTAIN ARMY
DURING THE EVACUATION OF FINMARK

(Fall 19 U)

living as fishermen. It is a very wintry and isolated region ; there
are no railroads, and the only communication with southern
Norway is by sea or by the single road along the coast known
as Route 50.

Rendulic began his retreat in September 1944. The two
northern-most corps of his army were the XIX Mountain Corps
under General Ferdinand Jodi (brother of Alfred Jodi who was a
defendant in the trial before the International Military Tribunal)
and this corps was in the extreme north near Petsamo ; the other
was the XXXVI Mountain Corps, about 100 kilometers to the
south of Jodi’s unit. It was the troops of these two corps that
were chiefly concerned in the activities which form the basis of
the charges in the indictment. By the latter part of October,
part of these troops had been withdrawn westward from Petsamo
through Kirkenes and were resting around the village of Tana,
and others to the south were making their way out of Finland
by the more southerly route which joins Route 50 near Porsanger-

835

Halvoya. The darkness of the northern winter was rapidly setting
in, it was very cold, and there was more than enough snow.
The advancing Soviet troops had kept contact with the Germans
as far as Tana. In order to make the Russian advance as difficult
as possible, the German troops had been systematically destroying
barracks and buildings and port facilities, and endeavoring to
persuade the Norwegian population to evacuate, in the area be-
tween Kirkenes and Tana.

Late in October 1944, the German High Command decided that
this program of devastation and deportation should be much more
extensive and rigorous. As a result, on 28 October 1944, the
OKW, over Alfred Jodi’s signature, issued the following order to
Rendulic as commander of the 20th Mountain Army ( 75A-PS ,
Pros. Ex. 503 ) —

“Because of the unwillingness of the northern Norwegian
population to voluntarily evacuate, the Fuehrer has agreed to
the proposals of the commissioner for the occupied Norwegian
territories and has ordered that the entire Norwegian popula-
tion east of the fiord of Lyngen be evacuated by force in the
interest of their own security and that all homes are to be
burned down or destroyed.

“The Supreme Commander Northern Finland is responsible
that the Fuehrer’s order is carried out without consideration.
Only by this method can it be prevented that the Russians with
strong forces, and aided by these homes and the people familiar
with the terrain, follow our withdrawal operations during this
winter and shortly appear in front of our position in Lyngen.
This is not the place for sympathy for the civilian population.
* * * * * * *

“It must be made clear to the troops engaged in this action
that the Norwegians will be thankful in a few months that they
were saved from bolshevism, and that the barbarian methods
of the air war against our German country and her cultural
shrines have brought a thousand times more misery to our
people if compared with the humane evacuation and destruc-
tion of homes in northern Norway, which is necessary for our
war effort, and which, if it is not done, must be paid with the
blood of German soldiers.

“The population, whose livelihood is fishing, in northern
Norway, furthermore has enough shipping space at its disposal
to be able to get out of the way en masse across the water.
A large part of the small Norwegian ships which are kept
hidden at present can be used for this, and can later also be
used for our own transportation needs.

836

“The danger of the formation of guerrilla bands on the part
of the Norwegians appears to be negligible since they can no
longer use the houses during the winter.”

It was claimed, in defense of Alfred Jodi, during the trial
before the International Military Tribunal that this order was
unnecessarily far reaching, and that Alfred Jodi, by various subtle
means endeavored to convey to Rendulic that it should not be
complied with to the fullest degree. 1 If this be true, there is little
evidence that Rendulic undertook to soften its effect in any
material respect. The order which Rendulic issued to his sub-
ordinate commands the following day follows very closely the
language of the OKW order and includes the following (NOKW-
086, Pros. Ex. 50 U ) 2 :

“1. Because of the lack of willingness of the northern Nor-
wegian population to evacuate the country voluntarily, the
Fuehrer has ordered the compulsory evacuation of the popula-
tion east of the Lyngenfjord in the interest of the security of
the population, which is to be preserved from bolshevism, and
that all houses be burned down or be destroyed. It is the re-
sponsibility of the commander in chief of northern Finland
that this order be carried out ruthlessly so that the Soviets
supported by dwelling places and a population which knows the
country will be prevented from following our withdrawal with
strong forces. Pity for the civilian population is out of place.”

* ***** *
The following directions were given for the —

“5. Execution of the evacuation —

“a. The entire evacuation area is to be emptied of people.

“b. Evacuated settlements are to be destroyed unless they
are to be used thereafter by troops marching through (that is,
at the latest by the rear guards).

“c. The operation must be a sudden one and the officers of
the Reich Commissioner of Norway must participate, and Nor-
wegian authorities must be harnessed for it ; the latter, however,
only from the beginning of the operation.

“d. The seized population is to be led to the nearest ports
under military guard (also small ports with docks suitable for
cutters).

“e. Local and district commanders are to erect reception
camps in or near these ports.

1 Alfred Jodi's contention in this regard is referred to in the judgment of the IMT, Trial
of the Major War Criminals, op. cit. supra , vol. I, p. 324.

2 This document is reproduced in section VIIB.

837

“/. Men capable of working and marching, and in the
western districts women capable of marching also, are to be
coupled to the marching units furthest in front and to be
taken along.

“g. Insofar as the population still has small ships available,
they are to be used for the deportation of the evacuees under
military cover.

“h. All ships used by the Wehrmacht (freighters and army
transports) are to be loaded additionally with as many evacuees
as possible.

“i. Columns on Route 50 to be formed only to an unavoidable
degree ; invalids, women, and children to be assisted by loading
them on trucks. Only men really capable of marching to join
the march columns!

*******

“7. I request all officers concerned to carry out this evacua-
tion in the sense of a relief action for the Norwegian popula-
tion. Though it will be necessary here and there to be severe,
all of us must attempt to save the Norwegians from bolshevism
and to keep them alive.”

On 1 November, the Germans made known to the population
what was in store for them. Rendulic’s proclamation stated
(NORWAY-1 0 y Pros . Ex. 519 )* —

“To the Population

“The evacuation of a part of northern Norway has been
rendered a military necessity as a result of the treachery of a
Finnish Government clique.

“The evacuation necessitates the removal of the civilian
population as the enemy has proved that in those territories
occupied by him, he ruthlessly and brutally forces the civilian
population to give him active assistance in achieving his aims.

“This means that no shelter or means of existence of any kind
can be left to the Bolshevik enemy in the fighting zone. All
such installations as housing accommodation, transport facili-
ties, and food stocks must be destroyed or removed.

“The population in these districts will therefore be deprived
of the basis for their existence, so that in order to be able to
survive, they must evacuate to those Norwegian territories
which are still protected by the German Wehrmacht.

* Document reproduced in section VIIB.

838

“He who does not comply with these unequivocal instructions
exposes himself and his family to possible death in the Arctic
winter without house or food.

[Signed] “Terboven

“Reich Commissioner for the
“Occupied Norwegian Territories

[Signed] “Rendulic
“General

“Commander in Chief, 20th Army.”

This ruthless and in large part unnecessary decision was carried
out by Rendulic’s forces according to plan. Northern Norway,
from Kirkenes nearly to Tromso, was turned into an Arctic desert.
Over 43,000 men, women, and children — over two thirds of the
entire population of an area about the size of Scotland — were
herded down Route 50 or crowded into small boats. We may be
sure that the official German report to Rendulic of the manner in
which the evacuation was carried out is not overstated (NOKW-
090 , Pros . Ex. 506) * I quote:

“Some untoward events, such as * * * the separation of men
from their families to be deported * * *, the burning down of
houses in the presence of inhabitants even where an immediate
destruction was not necessary, and shelling of the locality
Kjoellefjord by units of the navy, hindered the readiness of
the population to follow the officially prescribed way.”

The prosecution will submit evidence to show that the devasta-
tion and evacuation, at least in large part, were wholly unjustified
from a military standpoint, and that, under the spur of Rendulic’s
admonition that his order was to be “carried out ruthlessly”,
and that “pity for the civilian population is out of place,” the
destruction and evacuation were carried out with unnecessary
brutality, resulting in the impoverishment of the entire population,
in the death of some, and the suffering of many thousands.

* * * * * * *

Before concluding, the prosecution wishes to outline its views
on certain legal questions which are sure to be discussed in the
course of this trial. No doubt the Tribunal may desire a fuller
discussion of these matters at a later date, but we think that a
few remarks at this time may be of assistance.

Certain points may be passed over briefly. The defendants may
contend, for example, that the crimes charged against them were
committed under the compulsion of orders from their military

* Ibid.

839

superiors. As has been stated, their own military law is to the
contrary. Paragraph 7 of the German Military Penal Code is
quite clear and states:

"If execution of an order given in line of duty violates a
statute of the penal code, the superior giving that order alone
is held responsible for it. The subordinate obeying that order,
however is liable to punishment as an accessory in the event
* * * that he was aware that the order involved an act the com-
mission of which constituted a common or military crime or
offense.”

In any event, the London Charter and Control Council Law
No. 10 are governing. Paragraph 4 (b) of Article II of Law
No. 10 states :

"The fact that any person acted pursuant to the order of his
government or of a superior does not free him from respons-
ibility for a crime, but may be considered in mitigation.”

So far as the plea of mitigation is concerned, should any of the
defendants succeed in bringing themselves within the scope of
this provision, the prosecution will suggest that it has little, if
any, application to persons holding the high military rank of
these defendants. There may be room for application of this pro-
vision in the lower ranks of the military, but if it is to be applied
to field marshals and generals, the whole doctrine of responsibility
for the commission of war crimes would be absurdly limited and
rendered totally ineffective. As the International Military Tri-
bunal declared in finding Keitel and Jodi guilty,*

"Superior orders, even to a soldier, cannot be considered in
mitigation where crimes as shocking and extensive have been
committed consciously, ruthlessly, and without military excuse
or justification.”

But there are a few legal matters which have a more substantial
bearing on this case. These include the principles of interna-
tional law and the qualifications of belligerents. We do not believe
that these principles will have any decisive bearing on the out-
come of this proceeding; no doubt there are many delicate and
unsettled questions pertaining to hostages and belligerents, but
the defendants so frequently, so deliberately, and so far trans-
gressed the outer-most boundaries of what might be justified or
defended as not unlawful, that in the final analysis no such difficult
problems will confront us.

1 shall deal first with hostages and reprisals.

* Trial of the Major War Criminals, Nuremberg, 1947, vol. 1, pp. 291 and 325.

840

The concepts of “hostage” and “reprisal” both derive from rela-
tions between nations, or between their opposing armed forces,
and not from the relations between a nation or its armed forces
on the one hand and the civilian population of an occupied terri-
tory on the other. This circumstance is not infrequently over-
looked, and perhaps accounts for the lack of precision in much of
the writing on these subjects. In war time, reprisals are actions
taken by a nation or its agents in order to prevent an enemy from
continuing to violate the laws of war. Thus, if on one side, hos-
pital ships are constantly being attacked, or the protective symbol
of the Red Cross ignored, the other side is entitled to take action
by way of reprisal in order to dissuade the enemy from continuing
his unlawful course of conduct. Retaliatory action so taken may
include actions which would themselves be violations of the laws
of war, but for the circumstance that the acts were done as legiti-
mate reprisals. Reprisal actions need not be identical with the
unlawful act which gave rise to the reprisals, but they should not
in quantity or character be out of keeping with or disproportionate
to the enemy actions which they seek to stop. Reprisals may, in
some circumstances, be taken against a civilian population of an
enemy country. For instance, if two belligerents are each occupy-
ing a portion of the other's territory, and one of them mistreats
the inhabitants in a manner not permitted by international law,
the other belligerent might take similar action in the territory
under its occupational control. But in such a case, the penalties
would be inflicted upon the civilians of the enemy country for the
purpose of persuading the enemy government to discontinue an
unlawful course of action, and not for the purpose of punishing
the civilian inhabitants themselves. Indeed, it is basic to the law
of reprisals that although they are in a sense retaliatory, their
purpose is not revenge but correction of the enemy’s behavior.*

The practice of taking or exchanging hostages is very ancient ;
its original purpose was to insure the performance on both sides
of treaties or agreements mutually entered into. The hostages
were in the nature of a pledge offered to guarantee a certain
course of behavior. In more recent times, hostages have been
taken not only to secure the performance of treaties, but also to
enforce the payment of requisitions, to protect or secure the
return of individuals held by the enemy, and for other like pur-
poses. It will be observed that, at bottom, the purpose of taking
hostages is to put one’s self in a position where reprisals can
be taken if the enemy (or, in time of peace, the other party to
the agreement) does not follow a lawful or an agreed upon course
of action. It is for this reason that a distinguished author in the

* Oppenheim, International Law, (Longmans, London, 1920), vol. 2, pp. 51-52.

841

field of international law has said, “The whole question of hostages
is bound up with the question of reprisals/' 1

Beginning with the Franco-Prussian War of 1870-1871, and
probably before that, it has frequently occurred that hostages are
taken from the civilian population of an occupied territory, not
in order to affect the course of conduct of the government to which
these civilians owe allegiance but in order to control the conduct
of the civilian inhabitants themselves. This practice has been
most frequently adopted by the Germans, for no other reason than
that during the last 80 years they have been most frequently in
the situation of occupying the territory of a belligerent adversary.
However, other nations have from time to time taken hostages for
this purpose, most noticeably the British during the Boer War.

The practice of taking hostages from the civilian population of
an occupied territory in order to insure the peaceful behavior of
the inhabitants has been much criticized, 2 but is acknowledged
as lawful by the great majority of text writers, and in the light
of actual practice, it certainly cannot be considered as a war
crime. But the taking of hostages for such a purpose is not,
strictly speaking, a reprisal at all, because it is not 3 “* * * a meas-
ure which is especially aimed at the enemy's method of waging
war and which aims to force the enemy to abandon measures
which are contrary to the laws of war." Although frequently
called a reprisal, such a taking of hostages is really a “police"
or “security" measure. There is no opposing government or
military commander with whom the occupying power can deal
on belligerent terms. From both a military and legal standpoint,
the taking of hostages or any other kind of oppressive action for
the purpose of maintaining order in occupied territories must be
considered from the standpoint of the right and responsibilities
of the inhabitants under international law, and the probable
effect of the measure upon their course of conduct. Steps which
might be quite effective in order to persuade an enemy government
to alter its course of conduct might be quite ineffective when
addressed to the inhabitants of an occupied territory, and vice
versa. As Professor Lauterpacht, Professor of International Law
at Cambridge University and a scholar who is both distinguished
and modern, has pointed out — 4

1 J. M. Spaight, War Rights on Land (MacMillan, London, 1911), p. 469.

2 Hyde, Charles C. t International Law (Little, Brown and Co., Boston, 1945), 2d revised
edition, vol. Ill, pp. 1902-1903. While the taking of hostages by the occupant may, under
certain circumstances, operate as a reasonable mode of securing compliance by a restive popu-
lation with a just demand designed to promote the maintenance of order, occurrences in the
course of World War I encourage the conclusion that it is also a weapon likely to be employed
by a despot to check interference of any sort with ruthless and cruel acts inspired by caprice.

3 Lutteroth, Ascan “Der Geisel im Rechtsleben” [The Hostage in Legal Practice] (Verlag
von M. und H. Marcus, Breslau, 1922), p. 243.

* H. Lauterpacht, “The Law of Nations and the Punishment of War Crimes,” The British
Yearbook of International Law (Oxford, 1944), p. 77.

842

"* * * the impact of the operation of reprisals is not as con-
siderable as would appear at first sight. In particular, it does
not seriously affect that most potent source of war crimes which
originates in the lawlessness and the brutality of the occupying
state.”

This brings us to the question whether, if hostages are taken
to insure peaceful and orderly behavior on the part of the civilian
population of an occupied territory, the hostages may lawfully
be executed if violent conduct by members of the population
continues to endanger the security of the occupying forces. The
Hague Regulations of 1907 do not contain any express provisions
concerning either the taking or the execution of hostages in
occupied territory. They do provide, however, in Articles 43 and
46, respectively, of the Annex to the Convention, that —

"The authority of the legitimate power having in fact passed
into the hands of the occupant, the latter shall take all the
measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely
prevented, the laws in force in the country.

"Family honor and rights, the lives of persons, and private
property, as well as religious convictions and practice, must be
respected.”

And, if these quoted provisions are not governing, we must take
full account of the declaration in the Preamble to the Hague
Convention —

"It has not, however, been found possible at present to con-
cert regulations covering all the circumstances which arise in
practice.

"On the other hand, the High Contracting Parties clearly do
not intend that unforeseen cases should, in the absence of a
written undertaking, be left to the arbitrary judgment of mili-
tary commanders.

"Until a more complete code of the laws of war has been
issued, the High Contracting Parties deem it expedient to
declare that, in cases not included in the Regulations adopted
by them, the inhabitants and the belligerents remain under the
protection and the rule of the principles of the law of nations,
as they result from the usages established among civilized
peoples, from the laws of humanity, and the dictates of the
public conscience.”

The majority of the text writers in the field of international
law, ancient and modern, have determined, either from the

893964—51 55

843

unwritten usages of war or by clear implication from the language
of the Hague Convention, that the killing of hostages, under the
circumstances and for the purpose with which we are here con-
cerned, is unlawful, and that the continued confinement of hos-
tages is as far as the occupying power is permitted to go. For
example, Oppenheim sanctions the taking of hostages by the occu-
pying power only “provided that he does not kill them.” 1 The
classical statement by Grotius that “hostages should not be put to
death unless they have themselves done wrong” 2 is in accordance
with the views of other old authorities and has been echoed in
more recent times not only by Oppenheim but by Garner 3 , and
others. 4 As might be expected, in view of the German propensity
for occupying the territory of neighboring countries, and the
sustained practice of the German Army in recent decades, Ger-
man scholars take the contrary view, and defend the execution of
hostages as a necessary measure in the event of continued civil
disturbances, dangerous to the security of the occupying forces. 5
A few English and American writers have expressed agreeement
with this view and argue, theoretically rather than practically,
that there is a fundamental absurdity in taking hostages if they
cannot be executed. 6

The military field manuals of the United States and England
do not throw much light upon this problem. The American man-
ual states that “hostages taken and held for the declared purpose
of insuring against unlawful acts by the enemy forces or people,
may be punished or put to death if the unlawful acts are never-
theless committed,” but in practically the same breath states that
“when a hostage is accepted, he is treated as a prisoner of war,”
and that “reprisals against prisoners of war are expressly for-
bidden by the Geneva Convention of 1929.” 7 The British manual
is not entirely clear either, but it contains the declaration that
hostages are to suffer captivity, not death, if an agreement is
violated. 8

Despite these conflicting views in years gone by, the results of

1 Oppenheim, op. cit. supra, pp. 241-242.

2 Grotius, “De Jure Belli Ac Pads” (Carnegie Institution, Washington, 1913), ch. XI,
art. XVIII, sec. 1.

3 Garner, J. W., International Law and the World War (Longmans, New York, 1920)
vol. 1, pp. 306-311.

4 Kuhn, Arthur K., The Execution of Hostages, The American Journal of International Law
(April 1942), pp. 271-274.

5 Waltzog, “Recht der Landkriegsfuehrung” [Rules of Land Warfare] (1942), art. 46, par.
III.

Lutteroth, op. cit. supra, pp. 264-267, where, however, the author acknowledges that the
majority view is to the contra - y.

Hammer and Salvin, The Taking of Hostages in Theory and Practice, The American
Journal of International Law (January 1944), pp. 20-33.

7 Rules of Land Warfare, U. S. Army, Field Manual 27-10 (U. S. Government Printing
Office, Washington, 1940), pp. 89-90.

s British Manual of Military Law, par. 461.

844

German practices with respect to hostages during the last two
wars has led to more definitive declarations in accordance with
the opinion which most authorities have always upheld. In Janu-
ary 1942, the representatives of nine European governments in
exile, in the famous St. James Declaration, branded the execution
of hostages as “part of a regime of terror” and categorically de-
scribed such executions as punishable war crimes. 1 The London
Charter, in Article 6(b) , and Control Council Law No. 10 in para-
graph 1(b) of Article II, both recognize the “killing of hostages”
as a war crime. The opinion of the International Military Tri-
bunal makes repeated reference to the killing of hostages as a
war crime. 2

The prosecution suggests to the Tribunal that the execution of
hostages, under the circumstances pertinent to this case, is quite
definitely and clearly a crime under international law. The pro-
visions of Law No. 10 are not only binding upon the Tribunal, but
are in accordance with the views which most authorities in the
field have held for decades past. But in urging the rightness of
this conclusion, the prosecution does not rely principally upon the
weight of authority, however impressive. On the contrary, our
position is based squarely upon practical considerations of mili-
tary necessity. The fundamental tenet of the laws of war, as we
said at the outset, is that human life should not be taken unnec-
essarily. Over the past decades, only the Germans have adopted
a general practice of executing civilian hostages in order to main-
tain security in occupied territories. Occasional examples in the
military history of the other western nations may perhaps be
found, but there is absolutely no footing, either in the authorities
or in practical experience, for the conclusion that the execution
of hostages is ever really necessary. And, if not, such executions
are in flat contradiction of Article 46 of the Annex to the Hague
Convention.

The short and conclusive answer to this much-mooted question
is that the execution of hostages practically never achieves its
intended effect. If the practice is once adopted on a systematic
scale, it deteriorates rapidly into a barbaric blood bath. The
officers and men of an occupying force will always find it easier
to take vengeance on innocent civilians who can be readily rounded
up than to track down the actual perpetrators and bring them to
justice; it is only human nature, though scarcely a credit to it,
that once the taking and killing of hostages is sanctioned, efforts
to apprehend the real offenders will be slackened, and repeated

1 See Kuhn, op. cit. supra., p. 274.

' Trial of the Major War Criminals, op. cit. supra., judgment of the IMT, vol. I, pp. 227-
228, 234, and 290.

845

breaches of security will be countered only by ever greater
slaughter of hostages. Furthermore, the execution of hostages,
far from frightening a rebellious people into submission, tends
rather to deepen their hatred for the invaders and provoke them
to renewed outbursts.

Even the timid and quiescent will be driven to resist, not so
much out of patriotism, as because they are no longer sure that
good behavior will safeguard their own security. When hostages
are being executed at the rate of 100:1, there is no security for
anyone. If women and children and old men of the most pacific
disposition are liable to be put away in concentration camps and
eventually executed because of violence in the surrounding coun-
tryside, they will soon feel much safer in the ranks of the in-
surgents than anywhere else.

And that is just what happened in the countries with which
we have been chiefly concerned today. The truth of what I have
just said should have become apparent to the Germans within a
matter of weeks v after large scale military operations in Yugo-
slavia had been concluded. It did become apparent to some of
them, but they wefe not listened to. As early as 31 July 1941, a
German lieutenant colonel in Belgrade wrote a report to the
defendant List in which he said (NOKW-1J H, Pros . Ex. 30) :

“Though nothing is said publicly about the shooting of Jews
and Communists as reprisal for acts of sabotage, these shoot-
ings have, however, made a deep impression in Belgrade. It
is doubtful whether the shooting will prevent a repetition of
acts of sabotage. The saboteurs are to be looked for in the
camp of the former Serbian officers, of the Chetniks as well
as of the Communists, who have the common interest of cre-
ating unrest in the country and stirring up the population to
boiling point against the occupation authorities. For their
purpose the shooting of people who did not directly participate
in the acts of sabotage is actually welcome.”

One week later, another report from Belgrade stated (NOKW-
11U, Pros. Ex. 30) :

“Reprisal measures, as for instance the severity of the shoot-
ing of 81 persons collected haphazardly, did not bring out paci-
fication nor did it serve as an intimidation. On the contrary,
the feeling of being plundered, chased away, or slaughtered
with wife and child, either by criminal Ustasha people in Bosnia
or Hercegovina, or by robber elements, or to lose life and prop-
erty as the casual object of reprisal at the hands of the Ger-
mans, has embittered and made desperate the otherwise quiet

846

and politically indifferent and loyal parts of the Serbian popu-
lation, who are automatically driven into the ranks of some kind
of insurgent groups/’

The German civil authorities in Belgrade were of the same
opinion. A report dated 20 August 1941, by an official of the
Ministry of Interior to the Military Commander in Serbia, dis-
closed the following (NOKW-1U87, Pros. Ex. 3U) :

“A German officer, a captain, was killed from ambush on the
road Arandjelovac-Topola, 4 kilometers from Arandjelovac near
the village of Banja on the morning of 16 August. The officer
was going on duty by car to Belgrade. The offense was com-
mitted by a Communist who has remained unknown. This
Communist had been lying in ambush in the cornfield and fled
through the corn to the woods after committing the deed.

“Eleven young farmers working in the fields were captured
and shot for this murder by the Germans at the place of the
incident, a state of siege was declared for the entire district.

“In order to combat Communist operations which had got
out of hand during the last few days, the German headquarters
sent a motorized assault troop which is at present going-
through all the villages making arrests and, due to ignorance
of the situation, is killing innocent men, women, and children.
All this is done on their own initiative, without inquiries and
without any kind of close cooperation with the administrative
authorities at the Gendarmerie, although such cooperation is
an absolute necessity for the combating of the Communist
action and for exterminating the Communists in the woods.
The district office has available reports from which the move-
ments of the Communists could be established, and it also has
at its disposal all personal data of the individual Communists.
However, the German headquarters does not request anything,
nor does it ask the district administration for any information,
and is opposed to taking any suggestion.

“The consequence of the procedure of the German assault
troops will be that a large number of innocent people will be
slaughtered and that the Communists in the woods not only
will not be exterminated but will increase in numbers. Because
many farmers, even entire villages — even though up to now
they had no connection with the Communists — will flee into
the woods only out of fear and will be received there by the
Communists. They will be provided with arms and used for
combat and for open revolt against the German armed forces.
This insurrection will develop on a large scale and will have

847

incalculable and terrible consequences for the entire popil-
lation.”

There was no lack of these warnings. With respect to reprisal
shootings carried out in the town of Kragujevac, the local Ger-
man commandant, a captain, reported to the Military Commander
in Serbia:*

“According to my standpoint, shooting partly or completely
innocent persons from this city can have directly harmful
effects. It is to be expected that embittered relatives of those
shot will now practice acts of revenge on members of the
German Wehrmacht.

“Sabotage acts on drinking water and on the current tem-
porary light supply, as well as a large attack of the bandits
against the city, in which the units could suffer more losses
than before, are not out of the realm of possibility. Above all,
the psychological effect will be catastrophic. The residents
of Kragujevac had hoped that the German Wehrmacht would
rid them of the Communist danger and that they would be
aligned into the new framework of Europe. With the methods
applied here we shall most certainly fail to win back the favor-
ably inclined elements of the population.”

Two years later, the same Cassandra-like prophesies are found
in the documents. No one can ever say that these defendants
were not warned. In July 1943 ( NOKW-893 , Pros. Ex. 293),
Glaise-Horstenau, the German Plenipotentiary General in Croatia,
strongly admonished the German Air Force for reprisal actions
by way of bombing villages, because, I quote, “This only forces
additional adversaries ‘into the woods,’ and it does not help to
pacify the country, but is detrimental, and shakes the confidence
in the German soldier of those parts of the population which are
of good will.” But not until December 1943 did the German
military leaders in the Balkans even pay lip service to these
truths. Finally, Loehr’s order of that month recognized that,
and I quote:

“The procedure of carrying out reprisal measures after a
surprise attack or an act of sabotage at random on persons
and dwellings, in the vicinity, close to the scene of the deed,
shakes the confidence in the justice of the occupying power
and also drives the loyal part of the population into the woods.”
But even this order was, in other aspects, so ambiguous that it

* Even those commentators who have defended the principle of executing hostages on the
ground of military necessity make no defense of the German Army's practice of this principle.
See Hammer and Salvin, op. cit. supra., pp. 26-28, 32; see also, Stewell, “Military Reprisals
and the Sanctions of the Laws of War,” The American Journal of International Law (1942).

848

did little to change these stupid and cruel policies. The slaughter
of the innocent continued and the Germans reaped only a harvest
of dragons' teeth.

The second set of principles of international law which are
worthy of preliminary discussion at this time are those pertaining
to the qualifications of belligerents. Under what circumstances
are combatants entitled to belligerent status? Under what cir-
stances must they, if captured, be treated as prisoners of war,
and under what circumstances may they be treated as a mere
armed band and disposed of by summary execution? These ques-
tions are especially relevant to count three of the indictment.

The Hague Regulations do deal with this question in Article 1
of the Annex which provides:

“The laws, rights, and duties of war apply not only to armies,
but also to militia and volunteer corps fulfilling the following
conditions :

“1. To be commanded by a person responsible for his sub-
ordinates.

“2. To have a fixed distinctive emblem recognizable at a
distance.

“3. To carry arms openly.

“4. To conduct their operations in accordance with the laws
and customs of war.”

These requirements are traditional and generally accepted, to
the extent that captured partisans in Greece and the Balkans
did not observe them. We may concede that the Germans would
have been within their rights in denying them the status of pris-
oners of war and executing them.* But this does not mean that
all of us here in the courtroom could here and now form our-
selves into a military company, choose a commander, wear a dis-
tinctive emblem, carry arms openly, and obey the laws and cus-
toms of war, and on that basis alone claim the right here and
now to wage warfare and the status of prisoners of war if
captured.

Obviously, the members of an armed group cannot claim the
status and rights of belligerents until a war has started. The
determination of the starting point of a war may sometimes
present problems, but ordinarily the far more difficult question
is to ascertain when a war has stopped. In accordance with “the
laws of humanity and the dictates of the public conscience,” it

* Except insofar as the provisions of Article 2 of the Annex, relating to the so-called
“levy en masse” may have applied, and except insofar as the Germans themselves, by com-
mitting the crime of waging aggressive war and, in their own operations, departing from the
laws and customs of war, may have deprived themselves of the right to demand compliance
with Article 1 on the part of the partisans.

849

is desirable that wars be stopped as soon as possible, and under
some circumstances it may be wise to adopt a fairly rigorous atti-
tude when major military operations have come to an end, and
declare that, after the signing of a treaty or armistice, the in-
habitants of the defeated and occupied country, civilians and
former soldiers alike, no longer have the right to carry on war-
fare and can not claim the status of belligerents.

On the other hand it can be, and is, often argued cogently and
with the benefit of many examples from history, that nations can
rise from apparent total defeat, long after the capitulation of
their own former government, expel the invader, and ultimately
achieve victory. As long as there is hope and particularly if there
are strong allied nations as yet undefeated, true patriots of the
conquered country will continue to offer desperate resistance to
the invader no matter what armistice or treaties may have been
concluded with him.

The argument between the proponents of these two divergent
approaches to the problem has been waged briskly ever since the
representatives of the European powers met at Brussels in 1874
to formulate a code of war. In general, the powerful countries
with large armies have tended to favor strict qualifications for
belligerent status, and the smaller powers a very much more
liberal set of rules. 1 It goes without saying that the Germans
have been in the vanguard of the former group of powers.

The International Red Cross has consistently sought to extend
the protection of the laws of war to the members of all substantial
armed groups who meet the requirements of Article 1 of the
Annex to the Hague Conventions. 2 We cannot, in this proceed-
ing, settle this thorny and complicated problem. And we do not
need to.

To begin with, it will be quite clear that the war did not end
in Yugoslavia in April or May 1941. Article 42 of the Annex to
the Hague Convention no. IV, 1907, states very clearly that —

“Territory is considered occupied when it is actually placed
under the authority of the hostile army. The occupation
extends only to the territory where such authority has been
established and can be exercised.”

The second sentence quoted above is of special importance.
No doubt the Germans, had they so chosen, could have left suffi-

1 An excellent discussion of these questions is contained in Nurick and Barrett, ’‘Legality
of Guerrilla Forces in the Laws of War,” The American Journal of International Law
(July 1946), pp. 563-583.

See also, I. P. Training, “Questions of Guerrilla Warfare in the Law of War,” same publica-
tion, pp. 534-562.

2 Rapport sur l’activite du Comite International de la Croix-Rouge en Faveur des “Partisans”
Tombes, Aux Mains de 1’ennemi (Geneva, October 1946).

850

cient troops in Yugoslavia to establish their authority throughout
the country. But they chose not to do this. They were pre-
occupied with the forthcoming campaign in Russia, and pulled out
their troops before hostilities had been fully concluded in practical
effect and while large portions of the country, particularly in
the mountains, were controlled by substantial enemy forces who
announced openly that they would continue to resist. Whatever
might be the rule in other circumstances, it was not open to the
Germans to sweep through Yugoslavia, evacuate the bulk of their
troops before their authority had been fully established, and then
declare that all future resistance would be considered a violation
of the laws of war.

Furthermore, the cause of the Yugoslav and Greek resistance
forces was at no time hopeless, as events have abundantly proved.
Governments in exile were promptly established, under whose
authority these forces continued their operations; indeed, long
before the end of the war, there was an enemy government
within Yugoslavia. Powerful allies of the Yugoslavs and Greeks
continued to maintain armies in the field 1 and to assist the
resistance groups.

Furthermore, if we look at the question as presented in this
case from a practical standpoint, we again discover that the case
is not nearly so difficult as it seemed at first sight. If resistance
forces consist only of a few small bands, whose activities are
limited to sniping and minor sabotage and who enjoy no support
from other powers, there may indeed be reason for denying them
the status of belligerents. 2 But there can be no reason for such
a policy when the enemy remains in large numbers, and fights
in large units and with modern weapons. To deny his troops the
status of belligerents under such circumstances will merely invite
counterreprisals against troops of the occupying power, and a
senseless war of extermination may ensue. Even more important,
such a policy will inevitably rally more and more inhabitants of
the occupied country to the standard of the resistance forces.
These very arguments were presented to Loehr and Lueters by
Colonel Heinz, Commander of the 4th Brandenburg Regiment, in
July 1943. Discussing the impossibility of capturing Tito and
his staff by orthodox military action, Heinz declared ( NOKW -
9U9, Pros. Ex. 290) :

“Such an elimination can only be achieved by former par-
tisans in cooperation with the Brandenburg regiments.

‘ See Trial of the Major War Criminals, op. cit. supra., vol. I, p. 254, concerning the doc-
trine of subjugation when “there was an army in the field attempting to restore the occupied
countries to their true owners.”

2 The distinguished jurist, Oppenheim, would not agree with this statement. See Oppen-
heim, op. cit. sui>ra, par. 60, pp. 76-78.

851

“The method followed up to now, of shooting to death all
partisans without distinction, could never be successful. Many
became partisans by the combined influence of several circum-
stances such as Ustasha, Moslem, or Chetnik atrocities, want
and starvation, terror and duress by other partisans.

“They stay partisans because the way back is blocked by the
German orders. They have lost their country and their family,
and so they fight to their death.

“Since the political conditions in Croatia are not improving,
new partisans replace those who are killed.

“According to observations of my unit, it would have been
possible to win over a certain percentage of the captured par-
tisans for fighting on the German side, if they had been guaran-
teed that their lives would be spared, that they would receive
food and that they could return to their homesteads at a later
time.”

But the final and compelling answer to the question as it is
presented in this case is that the Yugoslavs and Greeks alike,
even assuming that they were completely conquered and their
country wholly occupied and under German authority, had every
right to rise and defend themselves by armed force because the
Germans themselves so flagrantly violated the laws of war. It is
true that the inhabitants of an occupied territory have responsi-
bilities and duties as well as rights under the Hague Conventions.
If the occupying forces comport themselves lawfully, the popula-
tion is under a duty to remain peaceful and to refrain from en-
dangering the security of the occupation troops. If the inhabi-
tants do not fulfill these responsibilities, the occupying forces
may take proper security measures, including retaliatory action,
to reestablish order. But this works both ways. If the occu-
pying forces inaugurate a systematic program of criminal terror,
they cannot thereafter call the inhabitants to account for taking
measures in self defense. This is no technical doctrine of “un-
clean hands,” this is elementary justice and common sense. What
I have said nowhere appears in so many words in the Hague Con-
vention, but it is in entire harmony with the purpose of the
articles, and I think no one will be heard to deny that this is the
only conclusion which is possible in accordance with “the prin-
ciples of the law of nations, as they result from the usages estab-
lished among civilized peoples, from the laws of humanity, and the
dictates of the public conscience.”

* In this case, ten thousand times ten thousand murders are
charged, and for murder there is usually a motive. What moved
these men to murder? Some of them were religious, most of them

852

well educated. Some of them may now realize that what they
did was wrong, but, had the war ended otherwise than it did, I
doubt that these things would have caused them many restless
nights. Their policy of terror was a military failure, and an
important cause of the defeat which has brought them to their
present plight. Yet these men are certainly not without ability
and some measure of understanding. Why did they not see what
others saw so clearly?

I think that we can find the answer in two deep seated char-
acteristics of the German military mind. Whether the character-
istics prove the inheritance of acquired characteristics, whethe.
they spring from undiscernible geophysical factors, or whether'
they are the result of the curious and narrow training and indoc-
trination to which German officer candidates are subjected, one
may leave to the educators, historians, psychologists, and anthro-
pologists. Today is the day of the jurists, and today it is suffi-
cient to observe that the characteristics of which I speak led
these men, and others of their cast, into crime.

One of these qualities is that their every thought and impulse
is geared to a world in which Germany is at war, in which Ger-
many is attacking and invading, in which Germany is conquer-
ing and occupying. Lacking such conditions, their world is in a
state of suspended animation. Their martial fantasies have
permeated German scholarship and, by the latter part of the
nineteenth century, had thoroughly poisoned the most distin-
guished German minds. It was the great German historian and
philosopher Treitschke who declared : 1

“It is not for Germans to repeat the commonplaces of the
apostles of peace or of the priests of Mammon, nor should they
close their eyes before the cruel necessities of the age. Yes,
ours is an epoch of war, our age is an age of iron. If the
strong get the better of the weak, it is an inexorable law of
life.”

For the German militarist, other nations exist only to be con-
quered by Germany. They persist in the illusion that the other
nations will benefit thereby, and are often sincerely puzzled when
their occupying armies are treated coldly. This, too, we find in
Treitschke 2 :

“We Germans, who know Germany and France, know better
what is good for Alsace than the unhappy people themselves,
who through their French associations have lived in ignorance

1 Morgan, J. H., German War Book (John Murray, London, 1915), p. 42.

2 Ibid., p. 46.

853

of the new Germany. We will give them back their own
identity against their will. We have in the enormous changes
of these times too often seen in glad astonishment the immortal
working of the moral forces of history * * * to be able to
believe in the unconditional value of a plebiscite on this matter.
We invoke the men of the past against the present.”

With such a point of view towa^s war and the rights of Ger-
man conquerors, it is no wonder that German military leaders
have little or no respect for the laws of war or the dignity of
peoples who may come under their way. This is because they
do not value, and in fact are contemptuous of, the reasons which
underlie those rules. “If the strong get the better of the weak,
it is an inexorable law of life.” This attitude shows only too
clearly in the “German War Book,” the manual of the usages of
warfare on land, issued by the Great General Staff [Grosser
Generalstab] of the German Army. In the introduction to this
manual, we read:*

“Nowadays it is not only the army which influences the
spirit of the customs of war and assures recognition of its
unwritten laws. Since the almost universal introduction of
conscription, the people themselves exercise a profound influ-
ence upon this spirit. In the modern usages of war, one can
no longer regard merely the traditional inheritance of the
ancient etiquette of the profession of arms, and the profes-
sional outlook accompanying it, but there is also the deposit of
the currents of thought which agitate our time. But since the
tendency of thought of the last century [i.e., the 19th century]
was dominated essentially by humanitarian considerations
which not infrequently degenerated into sentimentality and
flabby emotion, * * * there have not been wanting attempts to
influence the development of the usages of war in a way which
was in fundamental contradiction with the nature of war and
its object. Attempts of this kind will also not be wanting in
the future, the more so as these agitations have found a kind
of moral recognition in provisions of the Geneva Convention
and the Brussels and Hague Conferences.”

In this case, the second marked characteristic of the German
officer caste comes into sharp focus — their profound contempt
mingled with fear of the peoples of eastern Europe. Again and
again this emerges in the orders to their troops and the reports
to their superiors. We hear this note in Keitel's order of Sep-
tember 1941, declaring that “a human life in unsettled countries
frequently counts for nothing.” Von Weichs, when he inaugurated

* Ibid., p. 54.

854

the 100 :1 ratio a few months earlier, responded to the same inner
feeling. These orders, too, are echoes of Treitschke, whose voice,
spanning over half a century, is heard to say: 1

“Each dragoon who knocks a Croat on the head does far more

for the German cause than the finest political brain that ever

wielded a trenchant pen.”

What these men have never realized is that no caste, and no
nation, however mighty, can hold the world in contempt and set
its laws at naught. Their military downfall was due, in no small
part, to crimes such as those with which they are charged.

What we have said may explain but it does not condone. We
may try to understand, but it is not ours to forgive. What these
men did they meant to do.

There are only 11 men physically present in the dock, but they
do not stand there alone. In a sense, they are hostages for the
judgment which history will pass on many others like them. But
they are more fortunate than the hostages we have heard so
much about today. They will not be punished for the crimes of
other men. Centuries ago, Grotius wrote that “hostages should
not be put to death unless they have themselves done wrong.”
That is the law of humanity, the law which they themselves are
charged with transgressing. And that is the law under which
they will be judged.

This concludes the statement, Your Honor.

B. Opening Statement for Defendant List 2

Dr. Laternser: Your Honors, in his essay in the British Year-
book for International Law ( Oxford , 19UU , VV- 58-95), which has
already been quoted by the prosecution in the opening statement,
Professor Lauterpacht has made reference to a problem which
is peculiar to the proceedings against alleged war criminals. It
is the problem of the uncertainties of laws of war. These uncer-
tainties of the laws of war make it imperative that the defense as
well — already at the present stage of the trial — explain its con-
ception regarding the problems of international law, which will
be of importance for the judgment of the actions of the defend-
ants especially since the prosecution has already presented its
concept of the law to the Court. For the law is the framework
within which the prosecution and the defense present their evi-
dence before the Court and within which the Court assembles the

1 Ibid., p. 43.

- Opening: statement is recorded in mimeographed transcript, 15 September 1947, pp. 2965-

3026.

855

facts which are offered, not at the time of the determining of the
judgment but also during the course of the evidence proceedings.

The problems on which the matter hinges have been mentioned
in principal by the prosecutor in his opening statement and I
intend to treat them in the same sequence as has the prosecution.

To begin with I wish to emphasize that I am purposely quoting
in the main sources from the Anglo-American legal circles using
such material as a guide in the interpretation of international
law insofar as this is of importance in this trial, for it cannot
be denied that in the field of science and practice of international
law the onus now lies upon these minds.

The first problem which I wish to take up is that of acting upon
orders. Logically enough, it is not the primary one, but by far
the factual and psychological key for the conduct of the defend-
ants which forms the subject of this trial. The prosecutor passed
this point very quickly. I shall treat it more in detail not simply
because, as I have already stated, it offers the explanation for
many events which are being discussed here but because from
the standpoint of international law it is much more complicated
than one can infer from the opening statement of the prosecution.

The sole basis for the punishment of war crimes is interna-
tional law, for war crimes are transgressions of international
law, which is to be differentiated from the laws of the states
against which the war crimes have been committed. Professor
Lauterpacht particularly emphasized this point in his essay “The
Law of Nations and the Punishment of War Crimes” in the
British Yearbook of International Law ( Oxford , 19 Uh, V • 59)
which essay has already been quoted. I quote :

“For the cause of international law demands not only the
punishment of persons guilty of war crimes. It also requires
that such punishment shall take place in accordance with
international law.”

And further on he states again :

“That law is, and must be, primarily international law. For,
it must be repeated, it is only to the extent that the acts of these
offenders are prohibited by international law, that they can
at all be considered as crimes according to the laws of the
individual states.”

Professor Kelsen, the founder of the so-called Vienna School for
State and International Law, now professor of international law
in the United States, expresses himself similarly in his book
“Peace Through Law” ( Chapel Hill , University of North Carolina
Press , 19 UU) he writes:

856

“These acts [war crimes] are forbidden directly by interna-
tional law. The military court, by punishing the acts, executes
international law even if it applies at the same time forms of its
own military law.”

The sentence from the verdict of the International Military
Tribunal must also be interpreted in this sense, since the London
Statute is the expression of existing international law at the
time of the creation of the statute.

From this it follows that the prosecution and punishment of
war crimes is an exercise of law only insofar as this takes place
within the framework of international law. What transpires
beyond that point is the utilization of power and not law. That
is the reason why in the proceedings before the International
Military Tribunal the British chief prosecutor examined as the
fundamental problem of his statements how the statute was in
accord with valid international law. For general international
law cannot be altered through unilateral action of the victorious
powers or through special agreements amongst one another even
when these may appear in the form of statutes or laws.

How is the plea of superior orders in the commission of war
crimes to be evaluated according to international law?

Professor Oppenheim, who was for many years senior con-
sultant of the British Admiralty and who must be regarded in
the field of international law as the criterion during the past
decades, stated the following in this respect in his book, “Inter-
national Law”:* *

“Violations of rules regarding warfare are war crimes only
when committed without an order of the belligerent govern-
ment concerned. If members of the armed forces commit
violations by order of their government they are not war
criminals and cannot be punished by the enemy; the latter
may, however, resort to reprisals. In case members of forces
commit violations ordered by their commanders, the members
may not be punished, for the commanders are alone responsible
and the latter may, therefore, be punished as war criminals on
their capture by the enemy.”

Professor Oppenheim maintained this opinion during his entire

life, from the first to the fifth edition of his “International Law,”

which is a standard text in international law literature throughout

the world. Like many authors he does not differentiate between

the plea of an act of the state, which comes into discussion when

the act is based on an order of the government, and the plea of an

order of some other military superior.

— . *

* Oppenheim, op. cit. supra, pp. 342-343.

857

George Manner, the American international law expert, who
treats the subject of plea of superior orders and act of state
in the article “The Legal Nature and Punishment of Criminal
Acts of Violence Contrary to the Laws of War” writes as follows:

“The maxim that members of the armed services of a country
are not personally responsible and liable to penal punishment
for acts perpetrated by them in contravention of the rules of
warfare under the orders or sanction of their governmental
or military superiors does not form part of the codified law of
war. Nevertheless, it appears to be a recognized principle of
this law. Since 1914, at least, the maxim has been incorporated
in the war manuals of the powers as a rule of the customary
laws of war.”

Also in further passages he again characterizes the above pleas
of superior orders, and act of state, as generally recognized
maxims of positive law which limit the punishment of war crimes
because they are components of the rules of warfare. I believe
that the opinion expressed in the opening statement of the prose-
cution, with reference to the plea of military orders, to the effect
that the recognition of this excuse is the result of a perverted view
regarding military discipline, does not get at the root of the
problem.

The question of military discipline in actions that are com-
mitted under orders is of importance only in the national penal
laws of different states. Here in this trial, however, the matter
under debate is the norm of positive international law independent
of its cause, that acting upon military orders excludes the prose-
cution of war crimes by courts of the enemy states against who-
ever acted upon orders. This extremely important difference can
easily be overlooked.

Paragraph 347 of the American “Rules of Land Warfare,”
which was edited under the direction of the Judge Advocate Gen-
eral and published by the War Department of the United States
in 1940 and is still valid today, explains, following the enumera-
tion of the possible war crimes, and I quote:

“Individuals of the armed forces will not be punished for
these offenses in case they are committed under the orders or
sanction of their government or commanders. The commanders
ordering the commission of such acts, or under whose authority
they are committed by their troops, may be punished by the
belligerent into whose hands they may fall.”

There can be no doubt that the official interpretation of the
War Department of the United States is represented by this

858

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question of actions under military orders in cases of war crimes.

The same point of view was held until 1944 by the competent
British offices in the British Manual of Military Law, paragraph
443, of which, after enumerating the possible war crimes, con-
tinued, and I quote:

“It is important, however, to note that members of the
armed forces who commit such violations of the recognized
rules of warfare as are ordered by their government, or by

I their commander, are not war criminals and cannot therefore
be punished by the enemy. He may punish the officials or com-
manders responsible for such orders if they fall into his
hands, but otherwise he may only resort to the other means
of obtaining regress which are dealt with in this chapter.”

In this respect Professor Lauterpacht writes in his essay in
the British Yearbook of International Law ( Oxford , 19H, Foot-
note, p. 66).

“Although chapter XIV of the military manual has not been

■ given statutory force it is, in general, an exposition of the
conventional and customary rules of international law as under-
stood by Great Britain.”

It is my opinion that the plea of superior orders is a generally
recognized maxim of international law demonstrated by excellent
authors on the subject of international law and by the military
handbooks of the United States and Great Britain.

This principle was already generally recognized 100 years ago,
as is shown by the famous case of MacLeod. During an insurrec-
tion against the British administration in Canada in 1837, mem-
bers of the British colonial forces attacked an American ship,
the Caroline, which was moored on the American side of Niagara
Falls, because they suspected that the passengers were insurgents.
They burned the ship and let it be carried over the falls. An
American citizen lost his life in this incident. In 1840, MacLeod,
a British subject, was arrested by the New York officials for par-
ticipation in the act against the Caroline and brought before
court. The British Ambassador in Washington demanded the
immediate release of MacLeod on the basis that the destruction
of the Caroline “was a public act by persons in the service of Her
Majesty, who were obeying the orders of their superiors.”

The American Secretary of State, Webster, recognized the
validity of the British argument and declared: “That an indi-
vidual who is a member of a public armed force, and who acts
under powers invested in him by his government, cannot be held

893964 — 51 56

859

responsible as a transgressor of the law, is a principle of public
law which is sanctioned by the customs of all civilized nations and
which the government of the United States is not inclined to
contest.”

This was brought further into practice in the well known case
of the sinking of the British Steamship Lusitania by a German
submarine during the First World War. At that time the British
Prime Minister, Asquith, declared himself against a prosecution
of the perpetrators since they had acted under orders. (This
attitude of Prime Minister Asquith is quoted in Lapradelle-
Larnaude, Examen de la responsibility penale de l’empereur
Guillaume II d’Allemagne, in “ Journal de Droit International”.)

Attempts have been made to deviate from this maxim of inter-
national law. In Section 228 of the Versailles Treaty the German
Government recognized the right of the Allied and associated
powers “to bring those persons accused of having committed
actions in violation of the laws and customs of war before military
courts.” The American expert in international law, Professor
Fenwick, in his book “International Law” characterizes as one
of the reasons why this decree of the Versailles Treaty was not
executed.*

“* * * the obvious legal difficulty that many of the accused

persons had acted in obedience to higher authority * * *.”

These legal difficulties could have only been eliminated by a
conventional rule on the problem. Therefore, and I quote Pro-
fessor Fenwick again, “efforts were made to create a new con-
ventional rule with regard to this subject.”

At the Washington Conference in 1922, a provision was incor-
porated into the treaty in section 3, regarding the use of sub-
marines, to the effect that a violation of the treaty provisions
regarding the attack, seizure, or destruction of commercial ships
should be punished as “piracy” regardless of whether the per-
petrator acted under the orders of a superior. This treaty was
never ratified.

This question was taken up again in 1930 at the London Naval
Conference. In part IV of the Naval Treaty of 22 April 1930,
it was decreed that submarines had to observe the same rules of
international law in their actions against commercial ships as
were observed by surface craft. The clause that the perpetrator
be held responsible for actions which were committed under
orders in violation of these rules is not to be found in the text
of this treaty. From this, one must conclude that the appendix

* Fenwick, Charles G., International Law, Third Edition (Appleton-Century-Crofts, Inc.,
New York and London, 1934) p. 669.

860

contained in the Washington version is not in agreement with the
opinion of the signatories of the London Submarine Protocol.

The jurists, commission which was assigned to the task of re-
vising the rules of warfare by the powers participating in the
Washington treaty expressly stated in a provision of their report
that persons acting under orders are free from any responsibility
for those crimes against the rules of warfare contained in their
report.

The attempts to incorporate into international law in a manner
effective under international law the principle of prosecution of
war crimes committed under orders were thus unsuccessful. It
is of importance that in spite of the efforts to initiate amendments,
the American “Rules of Land Warfare” as well as the British
Military Manual adhered to the earlier principle of nonpunish-
ment.

The provision of the American “Rules of Land Warfare” that
individuals may not be prosecuted for war crimes committed
under orders is still valid today. In contrast, paragraph 443 of
the British Military Manual was reedited in 1944, by which the
interpretation of the problem according to the international law
up to that time was supplanted by the maxims which were devel-
oped within national British law covering illegal actions com-
mitted under military orders.

If one examines the events to which this amendment can be
traced, then one finds that the Moscow Declaration of October
1943 had set the precedent. In this punishment of war crimes
without regard to the possible orders of military superiors was
made certain. I do not believe it is necessary to make particular
emphasis of the fact that this declaration was a political act
and presented no effective source of new international law.

Officially, the circumstance that in the posthumous edition of
the textbook of Professor Oppenheim (6th edition, 1940) —
prepared during the war by Professor Lauterpacht — the attitude
had shifted towards the question of prosecution of war crimes
committed under orders was stated as the reason for amending
paragraph 443 of the British Military Manual.

Professor Lauterpacht had further expressed an opinion against
paragraph 443 of the Military Manual in his essay “Law of
Nations and the Punishment of War Crimes.”*

Professor Lauterpacht certainly is a very modern scholar and
his essay is excellent, but I believe it cannot remain unnoticed
in a critical analysis that his reasons for the above-mentioned
opinion, from the point of view of international law, are very

* Lauterpacht, op. cit. supra, pp. 69-74.

861

weak. The view of Professor Lauterpacht, shared by a few
others, is in any case also termed "more than questionable" by
Professor Kelsen. Concerning the opinion set forth in the five
previous editions of Oppenheim’s textbook and of paragraph 443
of the British Military Manual, Professor Lauterpacht maintains
that they represent no sound principle of military law, requiring
for this reason a definite amendment of paragraph 443; I quote:*

“* * * unless the scope of prosecutions for war crimes is to
be drastically and unduly curtailed * *

But this reminds us, the defense counsels, of a certain phase of
the legal development within the state, which has in the mean-
time become a thing of the past, and in which prevalence is
given to the idea of the justifying end and the so-called sound
popular feeling as against the norms of positive law. And as
regards the "sound legal principle" which is supposed to be pro-
vided by reason, the following view expressed by Professor
Oppenheim about "reason" applies. I quote:

"I cannot agree to reason being a source of law. Reason
is a means of interpreting law, but it cannot call law into
existence."

It is just as much out of the question that reason alone can
modify existing international law.

The fact that the Supreme Court of the United States, as
pointed out by Professor Lauterpacht in one case concerning
espionage and sabotage maintained emphatically the direct crim-
inal responsibility of individuals for violation of military laws,
can by no means be taken as a precedent applying to the problem
under discussion. For as soon as espionage and wartime treason
are involved, the prosecution of offenders acting by order has
always been recognized as lawful in international law, contrary
to the general law.

The prosecution maintains that if the defendants would plead
that their acts were committed by order of higher authority, they
would find a stumbling block already in Article 47 of their own
Military Penal Code. Here, however, they fail to consider that
the plea of acting by order is judged in different ways in inter-
national law, which has to be applied when alleged war criminals
are prosecuted by an enemy state, and in the national law of the
individual states. According to the principles of national law of
civilized states the possibility of carrying through a criminal
procedure will — with certain differences in each district of juris-
diction — be dependent upon whether and how far the offender

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perceived his actions to be unlawful, or whether and how far
his guilt was neutralized or mitigated through duress. From the
point of view of international law, on the other hand, acting by
order — I adopt the view of the American “Rules of Land War-
fare” — is a fact excluding as a matter of principle the prosecution
for war crimes by a foreign state. This basic difference is also
stressed by Professor Lauterpacht in his essay, “The Law of
Nations and the Punishment of War Crimes,” being summarized
in the following words:*

“It is an interesting gloss on the complexity of the problem
that in Great Britain and in the United States the plea of
superior orders is, on the whole, without decisive effect in
internal, criminal, or constitutional law, although it is ap-
parently treated as a full justification in relation to war
crimes * * *.”

For this reason it is impossible to adduce the verdict of the
German Supreme Court in the case of Llandovery Castle pro-
nounced in the time following the First World War, in justification
of the redrafting of paragraph 443, as is done in amendment 34
of the British Military Manual, in footnote 4 to paragraph 443.
In the examination of the question whether and how far the
accused German U-boat officers could plead action by order of
superiors, the Supreme Court had to apply not international law,
but only national German law.

Article 47 of the German Military Penal Code can moreover
be used as foundation for the punishment of military subordinates
only in case the order issued by the superior was in violation of
German law. As orders issued by Hitler in Germany and for
German authorities and law courts were law, a soldier acting by
force of an order from Hitler could not be punished, not even in
pursuance of Article 47 of the Military Penal Code, even when
Hitler's order constituted violations of generally recognized ideas
of law or of international law.

I conclude my statements concerning this problem with a ref-
erence to the words of Professor Oppenheim, the firm champion
of the version to which I appeal, which are to be found in the
foreword to the second volume of his work.

“I have tried to write this volume in a truly international
spirit, neither taking any one nation's part nor denouncing
any other. It is to be deplored that many writers on the law
of war and neutrality should take every opportunity of display-
ing their political sympathies and antipathies and should con-

* Ibid., pp. 72-73.

863

fuse their own ideas of justice, humanity, and morality with the

universally recognized rules of warfare and neutrality.”

I have shown that the plea of superior orders is a long recog-
nized basic maxim of international law, which limits the punishing
of war crimes. But Control Council Law No. 10, which decrees
something different, is binding for the Court, says the prosecution.
I believe that the Court is only bound by international law.
Control Council Law No. 10 is based upon the combined authority
of four victor nations, and this authority goes no further than
the powers with which the sovereignty of each individual state
invests it in the community of international law. The general
international law, which, as has been said, recognized the plea
of superior orders as effective, may only be revised by general
conventions or by an administration of law based upon general
recognition, not, however, by unilateral acts of the victor nations
which are directed against a conquered nation. To be sure, an
occupying power has the power to issue laws for the occupied
territory; but it is just as certain that these laws may not
interfere in the sphere of international law. For the military
occupation does not transfer the sovereignty of the conquered
nation to the occupying power, by virtue of which a nation acts
in the sphere of international law, but it bestows only that part of
the governing power which is necessary to make it possible for
the occupying force to have effective control over the occupied
territory during the length of the occupation. The rights of the
occupying power are established and limited as binding in the
Hague Convention, and we find a detailed definition of the powers
of an occupying force in chapter 10 of the American “Rules of
Land Warfare.” Not only is every authority lacking for empower-
ing an occupying force to create, suspend, or alter international
law while acting for the conquered state. Rather, we establish
the fact that it was never doubtful that an occupying force did
not have this right and that this limitation of its powers proceeds
quite clearly from the Hague Convention. Such powers of an
occupying force could only arise through annexation which, how-
ever, was expressly disapproved of in the London Declaration of
8 August 1945.

I believe that here there is a special reason for referring to the
basic difference between the ideas of justice and humanity and the
recognized terms of international law, because from the opening
speech of the prosecution, the attempt to bring the charges against
the defendants to a simplified common denominator may be per-
ceived, thereby effacing this difference. In the opening speech
of the prosecution, which we have heard here, it was said that

864

1

these men are indicted because they have denied and under-
mined the fundamental basis of civilization, namely, the principle
that human life shall not be unnecessarily destroyed.

Regarding this principle, I am of the opinion that it is a noble
principle and is not only a result of humanity’s instinct for self-
preservation. It is, however, only a principle of ethics and a
demand of humanity. I cannot agree with the concept that it is
a recognized maxim of international law, now in the age of the
atom bomb and the mass air attacks upon the civilian population,
the frightfulness of which we experienced only a short time ago —
air attacks, in which, within a single city in 24 hours more than
200,000 people, mostly women and children, were killed, as in
Dresden, and that at a time at which the war was already
certainly won by the other side. I do not mention this in order
to raise counterreproaches, by which, as I know, the situation of
the defendants cannot be bettered. 1 only want to investigate the
basis of the difference which the public opinion of the world
and the jurists of international law make obvious in these ques-
tions. For it is necessary that in such important matters as the
accusations raised against the defendants, one sees quite clearly,
if one wants to judge them correctly. Thus, for example, Pro-
fessor Lauterpacht writes in his essay in the British Yearbook
for International Law, 1944, page 75, already cited several times,
that it is difficult to answer the question of the legality of the
air attacks by means of penal prosecution of individual persons,
while, as we must establish, these difficulties obviously do not
exist in the case of the charges which have been raised against
the defendants. The difference certainly does not lie in the fact
that in reprisal measures in the occupied territories more people
were killed than by air attacks upon the civilian population; or
that men die more easily by aerial bombs, aerial mines, and
phosphorous bombs than did the executed hostages; and also not
in the fact that the women and children who were buried under
the wreckage of the houses or in the cellars, or burned to death
on the streets as living torches, were more guilty than the par-
tisans and insurgents shot in reprisal. The diverse judgment and
treatment is rather connected, it seems to me, simply with the
fact that it is a matter of executions in the case of the actions
indicted here, that is, of killing men whom a belligerent had in
his power. There is no point in pursuing further reasons upon
which the diverse judgment is possibly based. It is sufficient
to establish the fact that this difference is present. I must there-
fore proceed from the facts as they are; that in contrast to all
other procedures by which in war people, even civilian persons,
are killed in great numbers, executions establish prima facie

865

the suspicion of war crimes, and that, as the practice of the war
crimes trials shows, without consideration here of the number
of the victims.

I believe that the principle maintained by the indictment, that |
people may not be killed unnecessarily, must be traced back to
the extent which agrees with the current practice of international
law. Later, when I come to speak of the actual situation in the
Balkans, I will take up the further efforts of the prosecution to
substitute the ordered investigation of which of the measures
indicted here were necessary and which were not, by the general
principle that all the measures of the German commanders were
arbitrary crimes, while, on the other hand, the actions of the
partisans and insurgents were patriotic acts and justifiably self-
defense.

First, I return to the executions. I intentionally did not say
more than that they usually establish the suspicion of war crimes
prima facie . I do not say, of course, that this suspicion is in
general justified. This suspicion obviously is connected with the
fact that the conviction that executions may only be undertaken
on the basis of a judicial judgment is wide-spread in the ideas
and concepts of men, while with regard to the exceptions to this
principle, which come under the concept “retaliatory measures,”
obscurities and differences of opinion predominate even among
the authors of international law.

“A tribunal confronted with the plea of reprisals as a justifi-
cation of the offense will be faced with a task of considerable
difficulty. International law regulates, in a necessarily rough
and indeterminate manner, the occasion for and the use of
reprisals both in peace and in war.”

Says Professor Lauterpacht in his essay in the British Year-
book for International Law, 1944, page 76, after he has estab-
lished directly before:

“But, as a rule, an act committed in pursuance of reprisals,
as limited by international law, cannot properly be treated
as a war crime.”

The concept of reprisals is defined in paragraph 358a of the
American “Rules of Land Warfare” ( U.S . Army Field Manual
27-10 , 1940) and in paragraph 452 of the British “Manual of
Military Law.” I agree with the prosecution that reprisals are
retaliatory measures which are committed by a nation or its
agents in order to hinder the enemy in further violation of the
rules of war. Reprisals are coercive measures. I cannot recog-
nize that they may be applied only in the relationships between

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nations or between their opposing armed forces, as the prosecution
argued. The action according to plan of inciting the civilian
population to acts of sabotage and attacks upon members of the
German occupation forces and the fight of the partisans in viola-
tion of international law in the occupied territories had the result
that during the Second World War reprisals had to be resorted
to above all against illegal actions of the civilian population, in
order to force the latter to desist from its illegal conduct. It
would be absurd to assume that the commanders of the armed
forces of a belligerent party had to endure acts of an enemy
civilian population in violation of international law, without being
able to protect their troops, when necessary, by retaliatory meas-
ures.

The admissibility of reprisals against illegal acts of enemy
civilian population is, therefore, expressly recognized by the
military handbooks of the United States and Great Britain.
Paragraph 358c of the American “Rules of Land Warfare”
answers the question “who may commit acts justifying reprisals”
as follows :

“Illegal acts of warfare justifying reprisals may be com-
mitted by a government, by its military commanders, or by a
community or individuals thereof, whom it is impossible to
apprehend, try, and punish.”

Paragraph 358cZ decrees:

“The offending forces or populations generally may lawfully
be subjected to appropriate reprisals. Hostages taken and held
for the declared purpose of insuring against unlawful acts by
the enemy forces or people may be punished or put to death
if the unlawful acts are nevertheless committed.”

The British military handbook contains the following decree
concerning this, paragraph 386 :

“If, contrary to the duty of the inhabitants to remain peace-
ful, hostile acts are committed by individual inhabitants, a
belligerent is justified in acquiring the aid of the population
to prevent their recurrence, and, in serious and urgent cases,
in resorting to reprisals.”

Paragraph 453 —

“The illegitimate acts may be committed by a government, by
its military commanders, or by some person or persons whom
it is obviously impossible to apprehend, try, and punish.”

867

Paragraph 458 —

“Although collective punishment of the population is for-
bidden for the acts of individuals for which it cannot be re-
garded as collectively responsible, it may be necessary to resort
to reprisals against a locality or community, for some act com-
mitted by its inhabitants, or members, who cannot be identified.”

These provisions of the American and British military hand-
books are based, as it may well be assumed, just as much upon
practical military experience as upon consideration of the laws
and customs of war, just as these latter are conceived by the
governments which published these handbooks. By these pro-
visions, the claim is therefore refuted that such steps remain
ineffective if they are directed against the inhabitants of an
occupied territory and not against the enemy government or its
armed forces. In the trial against Field Marshal Kesselring
before a British military court in Venice, the defense proved that
the shooting of 335 Italians, which was undertaken on 24 March
1944 in Rome as a retaliatory measure for an attempted bombing
of a German police company, prevented any further attempt
against the German Wehrmacht for the period following, until
the surrender of Rome at the beginning of June 1944, whereas
before these reprisals, attempts of that sort had occurred to a
constantly rising degree and at shorter and shorter intervals.

I believe that the prosecution also cannot appeal to Professor
Lauterpacht for its conception that reprisals against the civilian
population are ineffective and for this reason, inadmissible. The
passage cited by me from the essay of Professor Lauterpacht in
my opinion does not refer to the actual effects of retaliatory meas-
ures, but to the effect of the protest of the reprisals upon the
juridical judgment of a case according to international law.
The first sentence of the passage cited reads completely:*

“On the other hand, as in the matter of the uncertainty of
the law of warfare, the impact of the operation of reprisals
is not as considerable as would appear at first sight.”

By referring to the preceding legal statements concerning the
problem of the uncertainty of military law the meaning of the
citation becomes clear. Deliberations which take into considera-
tion the actual situation in the occupied territories and the mili-
tary necessities resulting from it, and the concepts laid down
in the American and British military handbooks of the govern-
ments in question concerning the condition of martial law show,

* Ibid., p. 77.
868

therefore, that reprisals may also be applied against the civilian
population, in order to force the latter’s conduct to be commen-
surate with international law.

The main question then immediately follows, whether in the
course of such reprisals people may also be killed, that is, also
people who cannot be proved to have had any connection with
the illegal acts for which the reprisals are a retribution. The
English and American authors available to me are silent concern-
ing this question. I disregard the citation of German authors,
world-renowned scholars, who answer in the affirmative. But I cite
again the British and American military handbooks. Paragraph
459 of the British “Manual of Military Law” provides:

“What kinds of acts should be resorted to as reprisals is a
matter for the consideration of the injured party. Acts done
by way of reprisals must not, however, be excessive, and must
not exceed the degree of violation committed by the enemy.”

Reprisals are, as established, coercive measures by which the
opponent is to be brought to desist from conduct contrary to
international law. But how can an enemy population in an occu-
pied territory, which, in opposition to its duty to maintain a
peaceful attitude and in no way to take part in the hostilities,
maliciously commits murder on members of the occupying mili-
tary forces, be forced in any other way to conduct in accordance
with international law than by answering their acts with equally
heavy measures, when, as almost always in such cases, the guilty
parties cannot be seized and punished? What can the com-
mander of an occupation army do, when an enemy population
systematically murders his soldiers and is prepared any moment
for open insurrection? It is left to his deliberation which meas-
ures he wants to apply, says the British military handbook, and
only adds that retaliatory measures may not be immoderate and
may not overstep the degree of the violation committed by the
opponent. That means that the party forced to take retaliatory
measures may do everything but not more than the nature of the
reprisals demand according to what they consider to be their
duty. The British military handbook answers the question
whether in such a case people may even be killed in reprisal
indirectly by not forbidding such a killing, while it expressly
excludes the killing of hostages in paragraph 461 who serve to
guarantee a treaty.

I believe a British officer would be told he had violated his duty
if, in a case where the security of his men demanded, he would
not have understood the indirect instruction of his military manual
in that way.

869

In this connection, I must again refer to the proceedings against
Field Marshal Kesselring. The Associate Judge Advocate General
at the British Military Tribunal in summarizing expressed his
opinion on this question as follows : “It cannot be excluded entirely
that innocent persons may be shot by way of reprisals; interna-
tional law is very flexible.”

In addition, it is of special importance that neither in the
London Statutes nor in the Control Council Law No. 10 is the
killing of persons by way of reprisal designated as a war crime
although this problem had no lesser practical importance during
World War II than the problem of killing hostages.

In paragraph 358 d of the American “Rules of Land Warfare”
a quite clear answer is given to the question whether innocent
persons may also be killed by way of reprisals. I have already
quoted this rule:

"Hostages taken and held for the declared purpose of insuring
against unlawful acts by the enemy forces or people may be
punished or put to death if the unlawful acts are nevertheless
committed.”

I now add this: The American “Rules of Land Warfare,” ac-
cording to the international law expert, Plueck — that is on page
41 — are legally valid. He expresses it in the following words:
“rules having the force of law.”

This is the most important sentence that has ever been written
in more recent times with regard to reprisals and hostages. It
is not only the key to the entire problem of reprisals and hos-
tages; it also denotes the point where these two institutions
overlap.

The prosecution has already pointed out the close connection
existing between the problem of reprisals and the question of
hostages and with regard to the modern practice connected with
hostages I agree with the prosecution in that respect that the
purpose of taking hostages is to place oneself in the position of
having the possibility of carrying out reprisals. Hostages have
always been exchanged, given or taken, for quite varying purposes.
The two main objects were always to guarantee treaties in war and
peacetime and the protection against hostile acts by the population
in an occupied territory. The two forms have developed inde-
pendently of each other and are quite different in their character.

The classical form in which to guarantee a treaty, which was
the original one, has been out of practice for a considerable time.
It was abandoned after the opinion had been accepted in inter-
national law that such treaty hostages must not be killed and, in
addition, the importance, extent, and complexity of the more

870

modern international agreements necessitated other guarantees in
the form of material and territorial securities. It is not my
intention to make extensive investigation into the historical de-
velopment of the hostage problem. However, I do think it
necessary to make it clear that the sentence of Grotius, “* * *
hostages should not be killed if they have not themselves com-
mitted an injustice, * * *” quoted in the opening statement of the
prosecution only refers to the classical form of hostageship, viz,
to hostages serving as guarantees of treaties. In addition, Grotius
only regarded it as a demand which in his opinion followed from
natural right; whereas, as Grotius states himself, the execution
of treaty hostages was regarded as admissible according to the
external or positive international law based on the accordance
of will of states which we call the practice of the states. The
principle that treaty hostages must not be killed was not given
universal formulation before de Vattel in the sentence, “la liberte
seule des hotages est engagee”

From this time on we may regard the principle that hostages
serving as a guarantee of a treaty must not be killed as a recog-
nized standard of customary international law. As already men-
tioned, it referred, however, only to treaties, and in the beginning
only to treaties concluded for the termination of a war or in peace-
time. Hostages destined as guarantees for war conventions were
still subject to the more rigorous martial law. To begin with, the
statement we find of von Moser applied to them —

“If the promise is not kept the hostages may, according to
more rigid laws, be treated with such severity as is appropriate
in view of the circumstances of the case.”

However, also in their case killing was later generally rejected.
Insofar as hostages still should be designated at all as guarantees
for treaties, which is still conceivable only during the war, the
statement contained in the British military manual, paragraph
461, therefore applies at present:

“* * * and if hostages nowadays are taken at all, they have
to suffer in captivity, and not death, in case the enemy vio-
lates the agreements in question.”

This principle must surely also be applied to a form of taking
hostages still exercised today as a guarantee for service claims
based on international law, which is closely related to the institu-
tion of treaty hostages, viz, to hostages taken by an occupying
power as security for requisitions and contributions. They do not
serve as security for contractual services but for service claims
based on a unilateral levy by an occupying force. Also in these

871

cases nonperformance does not grant the right to put the hos-
tages to death.

As regards the second main form of taking hostages, we have
the statement of the American “Rules of Land Warfare” of 1940,
that hostages taken and held for the declared purpose of insuring
against unlawful acts by the enemy civilian population may be
punished or put to death if the unlawful acts are nevertheless
committed. With this sentence the competent American Gov-
ernment authorities have summed up the development which we
can follow since this form of taking hostages has developed into
an important institution of martial law in the course of the last
150 years. The taking of hostages as security for the troops in
the occupied territory was already practiced in former times.
It could, however, only become a legal institution after martial
law in its development had arrived at the point of protecting in
principle the civilian population. Since only from that time on
reprisals against the civilian population became a problem of
law. The above quoted sentence from the American “Rules of
Land Warfare” is a clear acknowledgment of the facts which
may confront an occupying force in modern warfare with partisan
activity and underground movements.

Only at first sight is the fact peculiar that the modern form
of taking hostages for the purpose of reprisals developed into its
full severity only at a time when the classic form of insuring
treaties had been abandoned after its practice had become even
milder. It is the necessary consequence of the fact that in the
modern wars, as we could observe, the civilian population in the
occupied territory in an ever increasing degree participates, con-
trary to international law, in the fight against the occupying
power — of its own accord as well as due to systematic inciting
by exile governments or other enemy powers.

It is a peculiarity of the hostage problem that the separate
forms of this institution have developed separately and have
separate contents so that they cannot be treated analogously to
which Lutteroth already has referred in his treaties on hostages.
It makes a great difference for the actual contemplation of things
whether hostages are to be put to death because a levy was not
paid at all or not paid in time, or whether a commander in the
occupied territory is faced by the fact that his soldiers are being
murdered contrary to international law by a fanatical population
in spite of its having been warned. The analyses of the problems
of law show that a corresponding difference also exists from the
viewpoint of law. It lies in the reason justifying the measures
taken against the hostages. In the classical form of hostageship,
the right of punishing the hostage in case of contravention of

872

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the treaty or the duty to pay the levy originated from the ancient
institution of the hostageship itself where the measures adopted
against the hostage are a kind of punishment; with criminal
punishment it has in common the purpose of general prevention
less that of expiation. In the modern hostage form, however,
the killing or other punishment of the hostages are at least pre-
ponderantly reprisals, that is, compulsory measures adopted
against acts of the civilian population or the enemy forces com-
mitted contrary to international law in order to force them to
abide by martial law. The prosecutor already said in his opening
statement that “the purpose of taking hostages is to place oneself
into a position of being able to adopt retaliatory measures.” The
nature of reprisals of the modern hostage practice has been
recognized especially clearly in composing the American “Rules
of Land Warfare” as follows from the incorporation of paragraph
358cJ, which deals with hostages, into the rules on reprisals .

Together with this designation of the modern hostages, of
becoming possible subjects of reprisals, the conception of a
hostage has changed its meaning. In the classical sense of the
word hostages were persons who were formally exchanged or
taken as such, which resulted in certain legal relations between the
interested parties. Hostages in the sense of paragraph 358cJ of
the “Rules of Land Warfare” are, however, all persons taken or
held for the purpose of making them subjects of reprisals in
case of necessity, whether they be formally recognized as hostages
and actually be called hostages or, as in several orders of the
defendants, are called “expiatory prisoners” or the like.

Hostages in the sense of the expression as used in paragraph
358eZ of the “Rules of Land Warfare” are not only persons taken
by a belligerent for the sole purpose of placing himself in a posi-
tion of being able to carry out reprisals in case of acts on the part
of the enemy contrary to international law. Mostly, several
purposes are interwoven with one another; persons are arrested
because they are suspected of illegal activity, or of connection
with partisans or rebels, or who seem dangerous to the occupying
power for other reasons. It is especially natural that they, from
the moment of their arrest, also serve the declared purpose of
being subjects of reprisals in the future. In the order read here
they were frequently called expiatory prisoners. Other persons
were arrested because of the influence which they possessed due
to their profession or their economic or political position, and by
their arrest alone the paralyzation of the population's activities
was frequently achieved, which is still increased by the threat
of being put to death. For these persons generally only the
expression of hostage is customary; likewise for those who from

873

the outset were taken solely for the declared purpose of serving
as subjects for reprisals in the case of future violations of inter-
national law by the opposite side. All these various groups are
covered by the stipulations of paragraph 358cf of the American
“Rules of Land Warfare,” according to which they may be pun-
ished or put to death, if the unlawful acts are committed by the
opposite side in spite of warnings.

The opinion has been expressed that in the American “Rules
of Land Warfare” — due to the placing of hostages on an equal
level with prisoners of war and due to the stipulation that
prisoners of war must not be put to death — an “unfortunate con-
tradiction” exists with regard to the fact that the killing of hos-
tages is expressly permitted in paragraph 358ci ; this was held by
authors who stress that it is permissible to put hostages to death
in case of necessity.

The prosecution has also hinted at that. I do not share the
opinion that such a contradiction exists. On the contrary, I am
of the opinion that the regulations of the American “Rules of
Land Warfare” permit an absolutely clear solution of most
aspects of the modern problem of hostages; as a consequence of
their being accorded treatment equal to that of prisoners of war,
persons who formally have been taken as hostages shall, for the
duration of their arrest, be kept and treated as prisoners of war.
Another consequence is that such persons may, in as far as they
were not, as mentioned in paragraph 358, taken for the purpose
of being the objects of reprisals, be submitted to reprisals only
under the same conditions as prisoners of war, if for example,
hostages taken by the other side are killed in violation of inter-
national law. As for the rest, those hostages mentioned under
paragraph 359 of the “Rules of Land Warfare” who were taken to
insure a correct treatment of the wounded and sick and to protect
the lives of prisoners of war who have fallen into the hands
of irregular troops are also to be counted among those hostages
who, in contrast to the prisoners of war, may generally be made
objects of reprisals.

These hostages, too, were taken, as it says in paragraph 358a of
the “Rules of Land Warfare,” as a protection against unlawful
acts of the enemy, and may, therefore, be punished or killed if
those unlawful acts are nevertheless committed. I cannot see
where, as Hammers and Salvin, and the prosecution claim, there
exists an unsolved contradiction. All that is necessary is to ob-
serve the fundamental difference between hostages in the classical
sense of the word and persons who are taken or kept in order to
become objects of reprisals if the enemy violates international
law, and who often are also called hostages.

I have already mentioned that neither the London Statute nor
Control Council Law No. 10 consider the killing of people by way
of reprisals as a war crime. They obviously refrain from doing
so because reprisals might be a necessary means of forcing the
opposing armed forces and the enemy population to observe the
rules of warfare and to prevent them especially from committing
crimes against members of the occupying power. Since the Lon-
don Statute and Control Council Law No. 10 do not declare
reprisals being forbidden, they do not apply to the killing of
persons who were taken or kept for the purpose of becoming
objects of reprisals, even if these persons are called hostages.
This becomes evident through the fact that the army of occupa-
tion of the Soviet Union, that means, one of the three principal
powers who on 8 August 1945 signed the London Agreement,
shortly before that date decreed and publicly announced in Berlin
the killing of hostages on a proportional basis of 50:1 as a re-
prisal for attacks against members of the army of occupation.
This I shall prove.

It is obvious that the question of the status of the irregular
combatants in Yugoslavia and Greece plays an important part
in this trial. First of all it is important in connection with
count three of the bill of indictment but it also touches the other
points of the indictment as far as they deal with the problem of
reprisals.

I agree with the prosecution that this is the question: Under
which circumstances must combatants, if they are captured, be
treated as prisoners of war, and under which circumstances can
they be treated as armed bandits and be summarily executed?

The legal status of the resistance forces was also discussed
during the trial of Field Marshal Kesselring before the British
Military Tribunal in Venice.* That trial dealt not only with re-
sistance activities equal or similar to those in Yugoslavia and
Greece, but partly even with the same forces since, as is probably
known to the Court, Tito’s units expanded, since 1944, their
operations in Venezia Giulia and in the eastern Alps far into
Italian territory. In his opening statement the British prosecutor
Colonel R.C. Halse also dealt with them. Let me read what he
said about them :

“There are some war crimes which are only war crimes in
respect to one side. The partisans, for instance (and I say it
quite openly) , by attacking the German forces in the rear, were
guilty of a crime against the German law; I say advisedly

* See Law Reports of Trials of War Criminals, op. cit. supra, vol. VIII, Case No. 44, “Trial
of Albert Kesselring.” The accused was found guilty and sentenced to death by shooting. The
sentence was commuted by the Confirming Officer to life imprisonment.

893964—61 57

875

against the German law. So far as the Italian and Allied
law was concerned they were heroes. They did commit a
war crime and if they were captured by the Germans, the
Germans were undoubtedly entitled to try them for committing
a war crime, and if found guilty of committing that war crime,
the Germans were entitled to sentence them to death.” [Record,
2d day, page 6.]

The records of the trial before the British Military Tribunal
are, as far as I know, available here in Nuernberg, and can
therefore be consulted. If not, I shall submit to the Court an
extract of the trial transcript as an exhibit. Do we not find here
a surprising difference of opinion between both prosecutors as far
as the legality or illegality of the irregular combatants is con-
cerned, if we remember what we heard in the prosecution's
opening statement to this trial about the same problem and, as I
said before, partly about the same resistance forces?

The problem of the status of the irregular combatants is very
complex and needs a thorough analysis which must also examine
whether, and to which extent, the reasons for the legality of the
resistance forces, which the prosecution submitted in their opening
statement, held true only for the evaluation of the latter from a
patriotic and historical point of view, or whether they are also
of consequence in connection with legal considerations.

The starting-point for legal considerations is provided by
sections 1 and 2 of the Appendix to the Hague Convention which
contain the conditions, agreed to by treaty, for the recognition
of irregular combatants as belligerents.

The prosecution has characterized the conditions stated in sec-
tion 1 as traditional and generally acceptable necessities, and
has admitted that the Germans were justified in denying the
status of belligerents to, and executing, captured partisans who
had not observed these conditions. With this, such partisan ac-
tivities as were not carried out in the form of larger military
operations, have been taken out of the problem, because it is
characteristic of all activities of the bands in Croatia, Serbia, and
Greece, as far as they were carried out in the form of guerrilla
warfare, that the requirements of Article 1 were not fulfilled.
You will yet hear about origin, development, organization, and
way of fighting of the irregular troops in the Balkans. Here I
want to state in advance in condensed form only a few important
points.

Guerrilla fighting developed some time after the cessation of
hostilities in Yugoslavia and Greece and the occupation of these

countries. In the course of time it constantly increased in in-
tensity.

First it was waged against the army of occupation by National-
ist groups, in Yugoslavia by the Chetniks under Draja Mihailovic
and in Greece by the organizations of the Edes under Zervas.
Soon there appeared Communist groups with the same aim — Tito
in Yugoslavia, and the organizations of Earn and Elas in Greece.

First, all of them waged war against the army of occupation
only in small irregular units and in the form of guerrilla fighting
which consisted mainly of surprise attacks and sabotage. On
account of growing numerical strength and thanks to the equip-
ment he received from the Allies, Tito later on succeeded in
organizing larger military units with which he tried to carry
out regular military operations. At the same time, however,
actual guerrilla fighting in the form of surprise attacks and sabo-
tage in the rear of the front continued with undiminished ferocity.
Even if part of the resistance movement organized themselves
into military units, large parts of the movement in Yugoslavia
and almost all parts in Greece continued to fight in a way which
robbed the resistance forces of the protection of the Hague Con-
vention and made them irregulars (Freischaerler) .

It was characteristic that, regardless of whether they acted
individually or in smaller or larger units, they did not carry their
weapons openly, did not wear uniforms or insignia recognizable
at a distance, and did not observe, during their operations, the
laws and customs of war. During their actions they often wore
German or Allied uniforms for the purpose of deception. After
surprise attacks or acts of sabotage they assumed the appearance
of peaceful peasants, their weapons were well hidden. All these
groups of the resistance movement, those organized on a military
basis as well as the irregulars, conducted the struggle in an
unusually cruel way which contradicted all international law.
Horrible murder and mutilation of German soldiers and torturing
of prisoners were proved beyond doubt by affidavits and partly
by photographs.

The general historical experience which the authors Nurick
and Barrett formulated, with regard to the guerrilla bands which
appeared during the Mexican War, in the article “Legality of
Guerrilla Forces Under the Laws of War” in the words quoted
below, applies also to them:*

“As has usually been the case in guerrilla warfare, many
bands of guerrillas degenerated into little more than murderers
and highway robbers. They mutilated wounded American

* Nurick and Barrett, op. cit. supra, p. 570.

877

soldiers, divided among themselves the goods taken from the

enemy, and carried on Svar without pity in every manner

imaginable’.”

What does it matter in view of this, in connection with the
legal evaluation that these partisans in the Balkans were patriots
as the prosecution claims? The guerrillas to whom section 82 of
the “American Instructions of 1863 ,, for the leading armies in
the field referred were patriots, too. And nevertheless they, too,
at that time already lacked the status of lawful combatants and
were, on the contrary, to be treated as highway robbers or
pirates, as ordered by the American regulation.

As soon as we deal with the resistance forces, organized on a
military basis, which attempted to carry out regular military
operations, we find that they, too, could not claim the status of
lawful combatants because they did not conduct their operations
in accordance with the laws and customs of war. I already pointed
this out when I mentioned the cruel manner of fighting, which
violated international law, which all parts of the resistance move-
ment carried on in the Balkans. For the moment, however, I
shall disregard this fact, that is, paragraph 4, Article 1 of the
Hague Convention.* The problem of the status of the above-
mentioned military organizations and the question of the status
of the remnants of regular troops after the capitulation of the
government or, at least, the cessation of organized resistance, are
very complicated if one presupposes, for the sake of the investi-
gation, that they conformed to all four clauses of Article 1 of
the Hague Convention on Land Warfare. In that case four facts
are of importance in the evaluation of the legality of the resistance
forces :

1. That a war can be waged between states or governments
only.

2. That an actual state of war is terminated by capitulation
or by the cessation of organized resistance after the destruction
of the main forces.

3. The actual occupation.

4. The rights and duties of the population in the occupied
territory.

An individual does not become a lawful belligerent by wearing a
uniform, carrying weapons openly, and being under the command
of a person responsible for his subordinates. On the contrary,
before the members of a military force are entitled to be treated
as lawful belligerents, it is also required that, in addition to the

* Annex to Hague Convention No. IV, 18 October 1907, Article 1, paragraph 4 (Treaties
Governing Land Warfare, U. S. Army Technical Manual 27-251, Government Printing Office,
Washington, 1944, p. 15).

878

requirements set forth in the Hague Convention, they serve a
political entity which is a state de jure or de facto, or which at
least exhibits certain evidence of such status. Westlake makes it
absolutely clear that combatants can be treated as belligerents only
if there is reason to identify them with their state or government.

He says:

“If they are treated as parties to a war, that can only be

justly done when there is reason for their being identified

with their state or government.”

If these points of view are applied to the resistance groups in
Yugoslavia and Greece, one finds that all of them lacked the status
of lawful combatants, if for nothing else but the fact that after the
capitulation of the Yugoslav Government and the capitulation of
the Greek armed forces a belligerent state and a belligerent gov-
ernment, the existence of which could have justified the claim
of any person in those countries for the continuation of their
being treated as lawful belligerents, existed no longer. The fact
that later on governments in exile for both countries were formed
in London does not affect the status of the irregular forces. It
affects the status of the main agent of the struggle against the
German army of occupation, that is the Tito units in Yugo-
slavia and the Earn and Elas units in Greece, which were also
Communist, the less as they obviously cannot be identified with
the above-mentioned governments in exile. Tito did not serve this
government in exile but tried to replace it by the Communist
regime, an attempt in which he succeeded on 8 May 1945 with the
overthrow of the Yugoslav King. He and, like him, the Greek
Communist resistance movements did not receive orders from the
existing government but from a third power. It is correct that
he also received material support from the Allies, but we can find
nowhere that this can establish the status of a legal combatant.

During a war all kinds of methods are employed to damage the
enemy. Thus, one has already often plotted popular uprisings in
occupied territories and supported them materially. This, how-
ever, does not force the opponent to recognize the uprising
supported this way as an action of a belligerent power. While
arguing about the problem of the status of unlawful resistance,
we may incidentally not lose sight of one quite simple and clear
fact, which is more important than all arguments; it is the fact
that the Yugoslav Government unconditionally surrendered on
15 April 1941. The capitulation was signed by the Yugoslav
fighting forces and by the Minister Markovic as the representative
of the Yugoslav Government. The entire army surrendered in
Greece during the last weeks of April.

S79

I believe that this important fact was not considered in several
arguments of the prosecution, when the opening statement of
the prosecution charges the Germans with the fact, that after
overrunning Yugoslavia they withdrew the main body of their
troops and then declared that any future resistance would be
regarded as a violation of the laws of warfare. The Germans
did not assume this right; this right was granted them by the
unconditional surrender of the Yugoslav Government, independent
of the effects which resulted from the condition of the occupation
according to the Hague Convention.

When the former Prime Minister Winston Churchill announced
Germany's surrender on 8 May 1945, he declared:*

“Hostilities will end officially at one minute after midnight
tonight, Tuesday, the 8th of May.

*******

“The Germans are still in places resisting the Russian troops,
but should they continue to do so after midnight they will of
course deprive themselves of the protection of laws of war and
will be attacked from all quarters by the Allied troops."

This is a clear and justified conclusion drawn from a clear fact.

Field Marshal von Weichs drew the same conclusion from the
same fact in his order of 28 April 1941, when he declared
( NOKW-1151 , Pros. Ex. 7) :

“After the armistice, no Serbian soldier in the entire Serbian
territory has the right to carry arms.

“Whoever, in spite of this, is met in Serbian uniform with a
weapon in hand, thus places himself outside of the law of war-
fare and is to be shot to death immediately."

The prosecution states that the declaration made in this order
of 28 April 1941 contains one of the two basic principles of Ger-
man terrorism practiced in the Balkans, namely that not even
the simple right to continued resistance was granted to the
enemy, that his troops were no longer to be considered as com-
batants and thus should not enjoy the protection of the rules of
warfare. When one hears this interpretation of the prosecution,
I believe it is well to remember simultaneously the statement made
by Prime Minister Churchill on 8 May 1945. The contrast is proof
of the relativity to which law is subject in practice, especially
international law, when it is applied unilaterally after a war by
the victorious countries against the vanquished.

Both authors Nurick and Barrett have examined in the article

* The New York Times, 9 May 1945, p. 8.

880

which has already been quoted at various times, the status of
unlawful combatants after the surrender of their government or
after the complete defeat of the main fighting forces and the
termination of organized resistance, on the basis of a series of
historical events of the last hundred years, in order to derive
from these cases of precedents the norms of international law
according to the law of custom, which exist with regard to the
status of such unlawful forces. They declare, and I quote — *

“If there is a formal surrender by the enemy government and
capitulation of the main body of the armed forces, there is
noteworthy precedent, particularly in the position taken by
General Grant in the Civil War [after capitulation of the armies
of Lee and Johnston in April 1865] for regarding as unlawful
combatants those who continue to resist, even though they
may be substantial in number * * *. Although there is little
authority, the complete military defeat of the armed forces, the
disintegration of the government and the occupation of its
territory would seem to have the same consequence upon the
status of those who continue to resist as does a formal sur-
render.”

Oppenheim also declares that if the dispersed remains of the
defeated army continue to fight with guerrilla tactics after the
defeat and capture of the main part of the enemy forces, after
the occupation of the country and the disintegration of the enemy
government, this guerrilla war is not a real war in the strictest
sense of the word. And he notes that in strict law it is evident
that the opposing force no longer has to treat these guerrilla bands
as a combatant force and its members taken prisoner as soldiers.
Spaight is of the same opinion.

Naturally it may be advisable for the opposing force to recog-
nize the unlawful combatants as legal combatants, if they are
under the leadership of a responsible commander and follow the
laws and customs of warfare, as Oppenheim states, and espe-
cially if the unlawful forces are a large number and have formed
a de facto government, as Nurick and Barrett state. Regardless
if this fact, however, according to strict law it remains up to the
opposing force to decide whether and when it wants to recognize
the unlawful forces as legal combatants.

The above-mentioned laws applying to unlawful combatants are
connected with the surrender of a government or the capitulation
of the main fighting forces and the termination of organized
resistance. They refer back to the traditional principle, that war
is a fight between governments, which the fighting forces serve

* Nurick and Barrett, op. cit. snipra, p. 582,

881

and with which they have to be identified, so that one can speak
of war in the strictest sense of the word, and so that they can
claim to be regarded as legal combatants. The legal conclusion,
that war has stopped with the surrender of the government or
of the main body of the fighting forces, agrees with the practical
recognizance that, above all, it is in the interest of the population
of the defeated country, if any further resistance is terminated
as soon as possible.

Quite apart from these points of view, international law com-
bines with other facts a similar effect, as is contained in the
Hague Convention and in other laws and customs of warfare;
namely with the actual occupation of enemy territory. Armed
resistance within an occupied territory is rebellion ; it deprives the
resistant forces of the protection of the laws of warfare and
grants the occupying force the right to execute them. This
applies to popular uprising in an occupied territory, even if the
arms are carried openly and the laws and customs of warfare are
being observed. Only the inhabitants of a territory not yet occu-
pied have any claim, according to section 2 of the Hague provi-
sions, to be recognized as legal combatants if they take up arms
at the approach of the enemy ; but they naturally only have that
right if they carry these arms openly and observe the laws and
customs of war. The following statement of Professor Oppen-
heim applies to uprisings in a territory occupied by the enemy.
But this case (Article 2) is, and I quote:* “totally different” from
a “* * * levy en masse by the population of a territory already
invaded by the enemy, for the purpose of freeing the country
from the invader.” The quoted stipulation of the “Hague Regula-
tions does not cover this case, in which, therefore, the old cus-
tomary rule of international law is valid, that those taking part
in such a levy en masse , if captured, are liable to be shot.”

We already find this rule of international law based on the law
of custom in section 85 of the American Instructions of 1863,
on how to conduct armies in the field, which provides:

“War rebels are persons within an occupied territory who
rise in arms against the authorities established by the same.
If captured, they may suffer death, whether they rise singly,
in small or large bands, and whether called upon to do so by
their own but expelled government or not.”

We find this rule again in paragraph 12 of the American
“Rules of Land Warfare” of 1940 —

“* * * If the people of a country, or any portion thereof,

* Oppenheim, op. cit. supra, Vol. II, p. 107.
882

already occupied by an army, rise against it, they are violators
of the laws of war, and are not entitled to their protection.”

It has always been difficult to determine when an invasion
ends and an occupation begins. Article 42 of the Hague Conven-
tion is not very clear. We find a much more concrete, and on the
whole more satisfying, definition of an actual occupation in para-
graph 276 of the American “Rules of Land Warfare”, which
states :

“Occupation must be effective. It follows from the defini-
tion that military occupation must be both actual and effec-
tive; that is, the organized resistance must have been over-
come and the forces in possession must have taken measures
to establish law and order. It is sufficient that the occupying
army can, within a reasonable time, send detachments of troops
to make its authority felt within the occupied district. It is
immaterial by what methods the authority is exercised, whether
by fixed garrisons or flying columns, small or large forces.”

These prerequisites agree factually'^with those which Profes-
sor Oppenheim considers necessary for an actual occupation:*

“In reason no other conditions ought to be laid down as nec-
essary to constitute effective occupation in war than those under
which in time of peace a sovereign is able to assert his author-
ity over a territory * * *. When the legitimate sovereign is
prevented from exercising his powers, the occupants being able
to assert his authority, actually establishes an administration
over a territory, it matters not with what means, and in what
ways his authority is exercised. * * * really keep it under
control.”

In the opening statement of the prosecution you have already
heard several indications about the conditions which the Germans
established with regard to an actual occupation in Yugoslavia
and Greece. You have, for example, heard that for the pacifica-
tion of the civilian population, Serbia was divided into several
field commands, which essentially corresponded to the larger
cities and to the main strategic points in the country, and that
these field commands again were divided into smaller territorial
units, which were called local commands. That was the organi-
zational machinery used for the security of Serbia, the prose-
cution stated, and it became effective immediately if an act of
sabotage had been committed. If you compare these facts with
the demands made by Article 42 of the Hague Convention and

* Oppenheim, op. cit. supra, pp. 234-235.

883

by paragraph 276 of the American “Rules of Land Warfare” and
in the above quoted sentences by Professor Oppenheim for an
actual occupation, I believe from this alone the fact results that
the German occupation was actually effective. And if one has
heard in the opening statement of the prosecution how the par-
tisans, for example, in Croatia acted during the first 2 years of
the occupation, through surprise attacks on German guards or
garrisons, and acts of sabotage against traffic installations, supply
depots, and munitions depots of the German Wehrmacht, already
such side-lights give the picture of an effective occupation. It
will be the job of the defense to provide the Court with detailed
material in this respect, in order to show that an actual occu-
pation had been established in Yugoslavia and Greece after cessa-
tion of operations in April 1941.

In connection with the question of the combatants, I must also
deal with the problem of the Italian fighting forces which went
over to the partisans and fought against German troops after the
surrender of the Italian Government to the Allied forces on 8 Sep-
tember 1943. The prosecution states that it was one of the most
illegal and dishonorable acts in the history of warfare, that the
Italian officers of such units were shot to death. However, we
have heard that combatants who did not have the status of legal
combatants could be executed according to the laws of warfare
and up to now it has never been considered illegal or dishonorable
to execute persons who had been sentenced to death for wartime
treason. One may not only consider the fact that men who
wore a uniform were executed, but one must also investigate what
these men had done before they were sentenced to death.

By the surrender of the Italian Government, the Italian state
ceased to be an ally of the German Reich. There existed, first of
all, no state of war between Italy and Germany. Therefore, none
of the Italian divisions had the right to fight German troops, and
the Italian soldiers who did this could not claim the status of
legal combatants. Disarming of the Italian armed forces was an
absolute military necessity. Because three effective Italian armies
in the Balkans were a very serious danger for the German armed
forces, since they could have come to be an effective bridge-head
for the Allies. It was known, for example, that Admiral Cam-
pioni in Rhodes had already initiated negotiations with the
British.

In the case of war between Italy and Germany, which was con-
sidered a certainty, and if the Italian armed forces had not been
disarmed, the Balkans could not have been held, because the
Italian troops had occupied almost all the coasts. The right to
disarm the Italian soldiers primarily resulted from the fact that

884

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within the territory of operations of a combatant only legal com-
batants have the right to carry arms. I have shown that the
Italian troops no longer possessed the status of legal combatants
after their government surrendered. The authority to dis-
arm the Italians also resulted from the negotiations, which the
German command authorities carried out with the Italian High
Command in Athens and Tirana and on the basis of these the
Italian High Command ordered its troops to deliver their arms
without resistance and to let the Germans take them captive.
The order of the Fuehrer distributed to the subordinate troops by
the army groups, for the forwarding of which Field Marshal von
Weichs was held responsible, did not order that Italian officers
were to be shot because they and their troops fought against the
German armed forces without possessing the status of legal
combatants, although this would have corresponded with inter-
national law.

What the order of the Fuehrer did decree, was, that officers of
those Italian units who let arms fall into the hands of the
insurgents or in any other way worked together with the in-
surgents are to be shot to death after they had been sentenced
by court martial. Sentencing by a court presupposed a legal
provision as a basis for the punishment. In view of such clear
facts, such as the turning over of arms to insurgents or sup-
porting them, one does not have to look very hard for such a
legal provision. Just as the American provisions, which are
applicable in wartime, the German provisions concerning war-
fare also cover the facts of wartime treason, which is punished
by death. It was regulated in section 6 of the special Military
Penal Code, and covered every kind of support to the enemy.
It comprises the same facts as are enumerated in paragraphs
205 and 214 of the American "Rules of Land Warfare.” Since
here the unlawfulness of executing the Italian officers in spite of
their wearing uniforms has been emphasized so much, I point out
in particular paragraph 2055 of the American "Rules of Land
Warfare” which states that the American legal regulations on
wartime treason within a territory under military control in
general apply to persons of all classes without regard to nation-
ality or military or civil status.

You have already heard from the prosecution that at least two
Italian divisions joined the partisans. The defense will, within
the framework of evidence which it will submit to the Tribunal,
produce more material about the behavior of these Italian units
whose officers were called to account.

Among the Italian divisions that went over to the partisans
and thus committed wartime treason was, above all, the "Ber-

885

gamo” Division which from that time on called itself the “Gari-
baldi” Division. It has already been mentioned by the prosecu-
tion in connection with the asserted shooting of a large number
of officers of this division. General Gandin, who has likewise
been quoted by the prosecution, had fought against the Germans
although he and his troops were no longer entitled to the status
of legal combatants. He had thus violated the agreements
reached between the German and Italian high commands. Beyond
that, he had committed a particularly serious act of treason by
violating a special agreement which- he had reached with the
German commanding staffs with regard to his division. He had
declared himself willing to hand over arms. When the German
troops wanted to receive the arms, he ordered that they be at-
tacked. The Germans, not being prepared for that, suffered con-
siderable losses. General Gandin and the officers who were re-
sponsible together with him were sentenced to death by a court
martial formed by the competent German commander.

I must now say something with regard to counts two and four,
charging the defendants with wanton destruction of enemy
property, devastation of enemy territory, and encroachments
upon the freedom of the civilian population, above all, with
interning the population in concentration camps.

There is no doubt that only the willful destruction of towns,
small towns, and villages, and only devastation not justified by
military necessity can be war crimes. Thus, it was expressed
in Article 6 of the London Statutes in agreement with the stand-
ards of the Hague Convention. As regards the internment of
the civilian population in collective camps, it must be noticed
that quite obviously the freedom of the individual has intention-
ally not been included in the fundamental rights of the civilian
population to be respected by the occupying power in Article 46
of the Hague Convention. The reason for this is apparently that
the security of the occupation power has always necessitated
very extensive encroachments upon the personal freedom of
the civilian population in the occupied territory. A correspond-
ing right of the occupation power has, up to now, never been
contested.

It is very easy to declare with regard to a conquered nation
that its troops willfully destroyed enemy towns and villages
and undertook devastations without military necessity. And it
is very simple to designate the internment of parts of the civilian
population in collective camps as a war crime if it was carried out
by the conquered state. Here the relativity of law is seen, which
I have already mentioned, and I think it would be good to regard
the things with which the defendants are being charged in the

886

light of historical precedents and the opinion of important authors
on international law.

The American Professor Fenwick writes in his “International
Law” already quoted: 1

“General devastation of property as a means of covering
the retreat of an army was, however, a common practice of
belligerents. A more difficult problem was to determine how
♦ far the destruction of enemy property was justified, not in
connection with direct hostilities, but as a means of cutting off
the enemy's lines of communication, eliminating his subsequent
sources of supply, or intimidating the civilian population and
inducing it to bring pressure upon the government to sue for
peace.”

Professor Fenwick then states : 2

“In 1864, General Sherman devastated a wide area from
Atlanta to the sea in pursuance of an interpretation of military
necessity which included the objects above-mentioned, and
shortly afterwards the devastation of the Shenandoah Valley
was carried out to the same end.”

I insert here, when General Sheridan had finished the devasta-
tion of the Shenandoah Valley, he said himself then, “a crow
flying across it would have had to carry its own rations.” That is
according to the general's own statement. This quotation is
quoted by Spaight. 3

I now go on quoting Fenwick: 4

“In 1901, the British armies in South Africa interned the
civilian population in ‘concentration camps,' with the result of
serious loss of life. At the same time the country was laid
waste far and wide as a means of cutting off the supplies of the
guerrilla forces.” 5

Professor Fenwick also stresses that Article 23 g of the Hague
Convention which prohibits the destruction of enemy property,
unless it be imperatively demanded by the necessities of war,
leaves to the determination of the belligerent army the circum-
stances under which military necessity demands such measures.

You have heard an unbiased American scientist and author on
international law. I now quote Professor Oppenheim : G

1 Fenwick, op. cit. supra, p. 667.

a Ibid.

3 Spaight, op. cit. supra, p. 135.

4 Fenwick, op. cit. supra, p. 567.

5 See Spaight, op. cit. supra, for further details, pp. 298-310.
0 Oppenheim, op. cit. supra, p. 215.

887

“But the fact that a general devastation can be lawful must
be admitted."

It continues 1 —

“As regards captivity, the rule is that private enemy persons
may not be made prisoners of war. But this rule has excep-
tions conditioned by the carrying out of certain military opera-
tions, the safety of the armed forces, the order and tranquillity
of occupied enemy territory. * *.* even the whole population
of a province may be imprisoned in case a levy en masse is
threatening. * * * that in case of general devastation
the peaceful population may be interned in so-called concen-
tration camps, there is no doubt. ,,

Oppenheim continues 2 :

“The purpose of war may even oblige a belligerent to con-
fine a population forcibly in concentration camps/'

In the Court of the following weeks you will hear more details
about the reasons why the establishment of concentration camps —
I have just heard the translation of “Sammellager ,, to the words
“concentration camps," I would like you to change this to “col-
lection camps" and not concentration camps.

Your Honors, you will hear more details about the reasons
why the establishment of collection camps and the internment of
parts of the civilian population of the enemy in the Balkans was
ordered, and likewise facts will be submitted to you which indi-
cate the necessity for, and entitled the German troops to, carry
out devastations.

As regards the collection camps, I wish to note that they must
not be confused with the concentration camps in Germany, which
were subordinated to the Gestapo and have become a by-word.
They were collection camps, such as were also maintained by the
occupation powers in Germany under the name of internment
camp and in this connection I wish to point out that the concep-
tion of endangering the security of the occupation troops has
been subject to an entirely new interpretation by the introduc-
tion of the so-called automatic arrest, an interpretation which up
to the present was unknown in the practice of international law.

With regard to the destructions which were carried out by way
of reprisals in order to force the civilian population of the enemy
and the partisans to abstain from acts contrary to international
law, I refer to paragraph 358c of the American “Rules of Land
Warfare" which stipulates :

1 Ibid, pp. 174-175.

2 Ibid., pp. 216.

888

“Villages or houses, etc., may be burned for acts of hostility
committed from them, where the guilty individuals cannot be
identified, tried, and punished.”

I conclude my statements to this count with a statement by
Professor Lauterpacht in his treaties in the British Year Book of
International Law, 1944, page 74:

“Such acts as general devastation * * * may supply ample
reason for condemnation and protest; * * * they may, at the
end of the war, justify the imposition of collective sanctions
by way of compensation or otherwise, as distinguished from
individual penalties of a criminal nature. But criminal pro-
ceedings before the municipal courts of the victor may seem
to many a questionable method of removing outstanding doubts
and laying down authoritatively the existing law on subjects
of controversy.

“Total war has altered the complexion of many a rule. At
a time when the 'scorched earth' policy, with regard to the
belligerent's own territory, has become part of a widespread
practice, general destruction of property ordered as an incident
of broad military strategy will not properly form the subject
matter of a criminal indictment.”

In the case of the measures with which the defendants here
are being charged the principle of military necessity plays an
important role. This principle, which formed the basis of all
German military measures, was formulated in paragraph 4 of
the American “Rules of Land Warfare” as the highest general
principle of warfare and recognized to a very far-reaching degree.

This principle, however, must not be scrutinized in an abstract
manner, but must be considered in connection with the conditions
with which the accused were confronted and under which they
had to discharge their task, i.e., to secure the Balkans militarily.
Nothing at all of what forms the subject of this trial can be
understood if considered apart from the fundamentals, as is done
by the prosecution. The decisive fact was the geographic char-
acter of this country and the peculiarity of character of the
Balkan population which favored a partisan and resistance activ-
ity — experienced nowhere else to such an extent. I believe this
to be the proper time to give the high Court in brief a picture of
the special conditions in which the defendants were placed in the
Balkans.

Every appraisal of the military-political measures in the south-
east area will remain incomplete and inadequate with regard to
the actual conditions as long as it is not based on knowledge of

889

the completely abnormal circumstances in occupied territory. No
historian would be able to name a political area that could meas-
ure up to the Balkan area as far as the entanglement of the
problems, the multiplicity of the political currents, and the
fanatic sullenness of the contracts are concerned.

This begins already with the split-up character of the country ;
nowhere else in Europe do we find in an area of about 1,600
kilometers so many heterogeneous, tiny self-contained life-cells
laid out by the geographic nature of the country. Whereas, for
instance, the United States in an equal stretch of 1,600 kilometers
between Wisconsin and the Mississippi Delta uniformly cultivate
gigantic plains. A conglomeration of highly contrasting land-
scapes is to be found here in the Balkans. Every one has its
own individuality. They are littered around in a confused fash-
ion, as though a child had emptied out a couple of big boxes of
building blocks and the many-colored cubes now were mixed up
in a completely disorderly way on the floor of the room.

The mountains have steep slopes. They often have remote dens
and lonely mountain forests and thus offer welcome hiding places
and secret corners. Shepherds and farmers in distress retreat
there as do highway robbers, Komitatchis, and revolutionaries of
many kinds. That has been going on for thousands of years and
since the waves of the migration of peoples, since the great popu-
lation upheaval that came about with the invasion of the Osman-
ians, and since the nationality struggles of the 19th and 20th
centuries.

Partly in consequence of the geographical disruption appears
also a far-reaching disruption of communications, commerce, and
population.

Communications lack transcontinental lines laid out by nature,
only the Morava-Vardar-furrow in the east might have provided
such a connection. But even that trails through territories
which despite their moderately favorable conditions, as far as
lines of communication are concerned, developed rather centri-
petally than centrifugally. Not even the Adriatic-Ionian sea-
shore in the west remains as a natural line of communication
since the course of the mountains condemns the sea to inefficacy.
The mountains mostly run parallel to the coastline and thus
deprive the ocean of its influence on the interior. A very good map
with a scale of 1 : 500,000 or even better of 1 : 200,000 is needed
in order to comprehend the splitting up of the Southeast into
Slovenia, Croatia, Serbia, Montenegro, Albania, and Greece.

Railroad construction has only underscored the geographic
disruption splitting-up of the lines of communications of the
western Balkans. It is not necessary to get lost in the many

890

details of the territorial, political, economic, historic, and ethnico-
cultural disruptions. It suffices to state that to date the Balkans
are lacking an even halfway efficient railroad communications
system. The only trunk line of European importance, the line
Belgrade-Nis with the extensions to Sofia-Istanbul and Salonika-
Athens is single track; several territories such as the Pelopon-
nesus have only narrow gauge tracks. Well known mines have to
content themselves with animals as a means of transportation
and small cable cars.

Thus, in connection with all these facts only small communi-
cation systems developed in the western Balkan peninsula; there-
fore, also only small economies and small isolated settlements.
People live only in villages, small or medium size towns, and the
only large cities such as Athens, Salonika, and Belgrade are on the
periphery. Hand in hand with nature the historical development,
in particular the agrarian tendency at the beginning of
Osmanian rule, has contributed its share ; it has driven the Chris-
tian population into the mountains and has led to small dispersed
settlements in the secret corners up there. This difficult territory
had always made it possible to escape the authorities and combat
them.

The Balkans show an amazing conglomeration of nationalities,
an understandable variety if one considers how landscape and
economic lines of communication are split up. This ethnic divi-
sion comprises Pomakes and Muhatchirs, Kutzowlachs and Croats,
Greeks and Slovenes, Serbs and Macedonians, Bulgars and Make-
doslaves, Sarkatsaneans and Albanians, Turks and Armenians,
gypsies and others. Until the redistributions of 1912-1913, and
the great resettlement of 1923, all of these lived intermingled to
an extent that the ethnological map of the Balkans looked like
the tangled mess of threads of an over-colored carpet. And it
partly looks that way even today!

One must realize how a military government is faced with
unending difficulties on account of such an ethnic division, par-
ticularly since there is no perfectly correct diagram of the exist-
ing division. The few top scientists who can at all survey the
conditions have come to the conclusion that all statistics, and
that includes all old and new statistics of Balkan nationalities,
show more or less great inaccuracies.

In the still undeterminated state of development hard and cruel
battles occur about the nationality of the individual under the
motto, “if you don’t choose to be my brother, I am going to smash
your skull.”

We must imagine, though, that this struggle follows the forms
of fighting in the cultural ways of Central Europe or of the harm-

891

893964—51 58

less skirmishes among the sects of the Anglo-Saxon area of
culture. No, in the Balkans, from time immemorial all means are
being used. Apart from pulpit addresses — be it in the Slav or
Greek languages, apart from evening classes for adults and apart
from all possibilities of fiscal policy, use is made of personal
suspicions and, even in peace, of dagger and musket.

The results of such conditions are quite specific ways of life
for the Balkans which are entirely different from those of the
real European area of culture — different as far as their fervor,
their impulsiveness are concerned, but also their sullenness and
their cruelty. Always there have been all sorts of illegal fighters
here and here especially; from the common highway robber to
the feuding sons and grandsons, from the religious fanatic to
the gang leader, and every kind of underground movement.
Accordingly, it was quite normal that the Serbian kings died
through assassinations. Europe, not to talk of the world, learned
only little of what happened behind the mountain walls of the
Balkans. In the seclusion of that part of the world revolts flared
up again and again, and all efforts by the states were unable to
subdue either the robberies or the cruel fight against and sup-
pression of dissenters. What has not been said and written
about the “Macedonian question”? Europe and the world shud-
dered when the scope of the Macedonian atrocities came to light
and an International Commission published its report at the end
of the Balkan Wars. Yet, we must take into consideration the fact
that the commission could only visit the localities that could easily
be reached from the outside world and that the ruins of the
remote hamlets and villages in the mountains remained unknown ;
ruins whose population for the most part had been murdered.

Under such conditions the war added new political and ideo-
logical groups to those already in existence. A wild battle of
every group against the next one set in with all furor and the
age old cruelty.

In Greece, the revolting Nationalist groups (Edes) under
Zervas were in opposition to the Communist movement of the Earn
and Elas. The Nationalist Chetniks in Yugoslavia under Mihailo-
vic were the enemies of the Croatian Ustasha detachments, and
the adversary of both of them was Tito, the leader of the Com-
munist bands.

Even the struggle against the outside enemy sometimes took
second place in the efforts to finish off the political opponents in
their own country.

With such conditions, however, the defendants had to cope; in
the interest of the military tasks to be expected, they had to
establish tranquility and pacification in occupied countries. This

892

military necessity alone required severest actions. It will be the
task of the defense to show that the fight against the bands in
the Balkans was dictated only by these military exigencies, but
never — as is claimed by the prosecution — in execution of a plan
for the weakening and decimation of the Balkan population.

When I now proceed to explain to the Court the line that I
propose to follow in the defense of the Field Marshals List and
von Weichs, whom I represent, I would like to state the following
at the very outset with particular emphasis:

Both defendants, were, during the time of their Balkan activity
which will have to be illustrated in detail as far as scope, author-
ity, and responsibility are concerned, the highest strategic leaders.
Thus, it was they who before all others were responsible to the
OKW for the execution and preparation of operational tasks.

This most important task within the scope of the entire con-
duct of the war had to [be] and was to commit to a secondary
place all other tasks resulting from the occupation of a country.
For field commanders, such as Field Marshals List and von
Weichs, actual warfare is the main thing once a war has broken
out in consequence of a decision by the politicians.

All other tasks resulting from the occupation of the Balkan
countries appear, within the scope of the strategic task that was
assigned to my clients, to be of minor importance. These occu-
pational tasks were transferred to territorial commanders for
independent action, and their chain of command did not go
through the strategic leader but through the Military Commander
Southeast to the OKW. It follows quite naturally from the co-
operation that is necessary for military command posts at the
front that they inform one another whenever they are outside of
the chain of command. The fact that this principle was followed
in itself explains the communication of the events that took place
within the areas of the territorial commanders. On the whole
they were bound to interest the strategical leader because they
might be of importance in connection with the initiating or
carrying out of operational tasks. But this reporting of terri-
torial events could in no case constitute a reason for establishing
the competency or even the responsibility of the strategic leader
as the prosecution is trying to do.

Concerning the knowledge of all the happenings which make
up the contents of the indictment, the prosecution seems to hold
the opinion that the defendants represented by me had full knowl-
edge of all happenings during their term of assignment. It is
inferred that these happenings were in accordance with a plan
designed to weaken and decimate the population of the Balkans.

May it please the Tribunal, Field Marshals List and von Weichs

893

learned about this plan for the first time through the prosecution,
as I am going to prove subsequently.

As to the actual extent of the knowledge of the defendants,
however, the prosecution in a way is charged with the onus pro-
bandi. It has to produce evidence to this effect through intro-
ducing certain reports issued by military offices in the Balkans.
Apart from the fact that it still remains incumbent on the prose-
cution to prove the connection and the relevance of many of the
submitted documents as far as the defendants are concerned, the
following circumstances ought not to be overlooked, as easily
happens in consequence of the documents being introduced ac-
cording to purely chronological points of view and not to the
proceedings of the case.

Generally, I maintain that the defendants represented by me
could theoretically have knowledge of the reports and the accounts
only when they were addressed to their office and had actually
been received by the same.

I say deliberately — theoretically!

For in practice, Your Honors, you cannot presuppose even this
amount of knowledge. A commander in chief, who does not
receive incoming reports personally, will from these reports learn
only the facts presented to him during the daily discussions with
the officers of his staff. And this presentation is necessarily
done with a view to the main tasks of a commander in chief,
that means to the information that must be of interest to him
in connection with his operational tasks. This makes the con-
clusion obvious that a commander in chief in a certain theater
of operations must be much more interested in the fact that his
own troops have been assaulted than in the retaliatory measures
which might have been ordered, and which, moreover, were subject
to the competency of another command. As to these measures
he could assume that they had been carried out in accordance
with existing regulations, as long as no special facts which had
actually been reported to him gave him reason for a different con-
clusion. For, after all, the appropriate quarters issuing the
orders directing retaliatory measures had the same authority
as a commander in chief of an army or an army corps.

When these important points of view are considered, it becomes
quite obvious how the situation at that time must have appeared
to the defendants List and von Weichs, represented by me.

Field Marshal Wilhelm List, for whom I shall now present the
defense in broad outline, was by no means a Nazi general as the
prosecution is trying to make him appear in complete misrepre-
sentation of the real facts of the case. He was an unpolitical,
especially efficient officer and army commander with a strictly

894

Christian attitude. Toward national socialism, he had no sym-
pathy at all ; his premature separation from active service in the
year 1942 is evidence of this.

His activity in the Balkans was only of brief duration. At that
time he watched with anxiety the growth of the resistance move-
ment which he in his capacity as chief of operations of the Ger-
man forces in the Balkans was bound to prevent and combat.

That was his task and his duty and by no means a culpability.

a. As evidence justifying count one of the indictment the

prosecution presents above all the directives issued by Field Mar-
shal List dated 5 September 1941. ( NOKW-08U , Pros . Ex. U2.) x

I am going to prove that these directives had their origin only
in consideration of military exigencies.

In this document murder of the civilian population is ordered
with no word or sentence, which circumstance solely could make
it pertain to count one of the indictment.

Your Honors, I may ask you to read the document in full
instead of only the passage underlined by the prosecution. You
will then receive the impression that it is a question of directives
serving the purpose of repressing insidious attacks by ambush.
A “pacification through terror” is nowhere mentioned.

Further, I shall prove that the subsequent orders issued by sub-
ordinate quarters were based not on these directives of Field
Marshal List, but on the order issued by the OKW, 16 September
1941. ( NOKW-1U92 , Pros. Ex. U9.) 1 2

b. In no case did Field Marshal List order or allow the wanton
destruction of towns or villages, and only if this had happened
could he be charged with count two of the indictment.

c. Concerning count three of the indictment the prosecution
has not yet proved that the Commissar Order, (NOKW-U8U, Pros.
Ex. 13), (par. 12 b of the indictment) and the order issued by
the OKW, 23 July 1941, ( C-52 , Pros. Ex. 25), (par. 12c of the
indictment), were effective for the Balkan theater of operations.
Murder of prisoners of war, as alleged in paragraphs 12 d, e, and /
of the indictment, has not been proved by the prosecution ; it was
here a question of reprisals in the course of which insurgents
were killed.

d. Concerning count four of the indictment, I intended to prove
that Field Marshal List only considered internment justified for
such persons as had participated in or supported the resistance
movement. And to do so was his right and his duty.

Field Marshal von Weichs, by nature perhaps more a scholar
than a soldier, also repudiated national socialism and its methods.

1 Document reproduced below in section V-B.

2 Ibid.

895

He was a Catholic of profound devoutness, and for this reason
he was never completely trusted by Hitler.

I have already brought to the attention of the Tribunal — and I
still advocate the opinion — that Field Marshal von Weichs, be-
cause of his physical condition, is incapacitated for appearing in
Court. I base this opinion of mine —

(1) on the expert opinion of Dr. Riffard who confirms the
danger of a sudden perilous complication, as does also ;

(2) the American prison physician, Dr. Martin, who, it is true,
subsequently considers this danger no longer certain to the same
extent as in his report made on his own initiative and dated
29 July 1947.

In a short time I shall submit a new petition for examination
since in the meantime additional symptoms of a severe illness
have appeared.

May it please the Tribunal, at the beginning of the campaign
in the year 1941 Field Marshal von Weichs was only for a brief
period in the Balkans as Commander in Chief of the 2d Army.

a. Within this period (April 1941) the shooting, alleged by
the prosecution, of 100 Serbs in retaliation for the death of
assaulted German soldiers took place.

I maintain that this shooting of 100 Serbs in a proclamation,
still unproved, was only proclaimed as a threat but was never
executed.

Neither did Field Marshal von Weichs within this period ever
issue an order according to which 100 Serbs would be shot in
retaliation for every German soldier killed. The prosecution has
introduced no such order. The document submitted (NOKW-
1151 , Pros . Ex . 7) is only a proclamation to the Serbian popula-
tion, only threatening with shootings in this ratio in order to warn
against assaults on German soldiers. This is all that so far has
been provecl concerning this count.

When at the end of August 1943 Field Marshal von Weichs was
again transferred to the Balkans — this time as strategic leader —
the situation in this theater of operations had become much more
critical. In spite of this he used his influence only for the pur-
pose of mitigation, as I am going to prove. His order, 22 De-
cember 1943 ( NOKW-172 , Pros . Ex. 379), is evidence to this
effect.

Against occurrences reported to him, and constituting misbe-
havior on the part of the troops, Field Marshal von Weichs took
action in every way possible.

Besides, he in no case ordered or allowed civilians to be killed,
as alleged by the prosecution.

896

That is what 1 have to say concerning count one of the indict-
ment.

b. Concerning count two of the indictment, the prosecution has
proved no case in which Field Marshal von Weichs ordered or
knowingly tolerated wanton destruction of towns or villages.

c. In count three of 'the indictment, Field Marshal von Weichs
is charged with having forwarded or complied with unlawful
orders, but such orders were partly not issued, partly disregarded.

Under paragraph 12a of the indictment Field Marshal von
Weichs is charged with having ordered that persons being caught
in uniform and in possession of weapons after the conclusion of
the armistice should be shot. This refers to a stipulation con-
tained in the armistice conditions which had been laid down
through agreement with the state of Yugoslavia. In this con-
nection it will be sufficient to refer to previous explanations in
my address.

The Commissar Order mentioned under paragraph 12b of the
indictment did not apply to the Balkans, as I am going to prove.

The Executive Order, 18 October 1942 (par. 12h of the indict-
ment) ( C-81, Pros . Ex, 225 ) , was forwarded to the Balkan
theater of operations, and the army corps was unable to prevent
this order from being received. As I am going to prove, Field
Marshal von Weichs raised an objection to this order. In no
case was the order carried out, as I likewise intend to prove.

The measures against the Italian officers and troops following
the capitulation (pars. 12i through 1 of the indictment) were
necessary from a military point of view. Executions of Italians
took place only by virtue of sentences pronounced by military
courts or courts martial for wartime treason committed through
surrender of weapons to the partisans, support of the same in
other ways, and of illegal resistance in connection therewith.

Concerning count four of the indictment, I intend to prove that
also during the time in which Field Marshal von Weichs was
the highest strategic leader in the Balkans only such persons were,
and were supposed to be, interned as had connections with, or
supported, the partisan movement.

I am at the end of my statement and hope to have clearly pre-
sented to the Tribunal in broad outlines the evidence which I will
subsequently submit.

C. Opening Statement for Defendant Foertsch*

Dr. Rauschenbach : May it please the Tribunal. The prose-
cution charges the field marshals and generals who were active

* Opening- statement is recorded in mimeographed transcript, 16 September 1947, pp. 3071
3079.

897

in the southeastern area with having carried out a well thought-
out unlimited program of terror and destruction, by denying and
undermining the most fundamental principles of civilization and
by arrogant contempt of human beings in enemy territory. In
that manner they madly let loose a senseless torrent of deaths in
southeastern Europe. In the course of this they are supposed to
have shown themselves henchmen and tools of Himmler, Sauckel,
and of other Nazi worthies. The prosecution charges General
Foertsch in particular with having played an important part in
the realization of this so-called program of destruction and exter-
mination, stressing that he was an experienced chief of staff.
This is shown by the assertion that the physical presence of
Foertsch is supposed to have given the terms of authority of List,
Kuntze, Loehr, and von Weichs a steady and tragic uniformity.
As against that, I am going to prove that —

1. The exposition of events in their entirety as given by the
prosecution with regard to the southeast area does not corre-
spond to the actual developments in any of the four counts, since
the prosecution gives an incomplete and therefore incorrect pic-
ture of such events, which does not give sufficient consideration
to conditions in the Balkans, to the actions perpetrated by the
opponents, nor to the activities of those authorities which were
not under the jurisdiction of military commanders, thus making
no mention of the reasons for the measures of the German Army.
With regard to the above, I agree to the argumentation of counsel
for the defense, of the defendants List and von Weichs, and I
shall add a few supplementary remarks thereto.

2. In order to refute the allegation that the defendant Foertsch
disregarded and denied the most primitive principles of civiliza-
tion, I shall prove that he always considered the laws of morality
and of the Christian religion as binding, and that he also observed
these laws in as far as he was free to do so during his term of
office in the Southeast.

3. With regard to the further accusation that his attitude and
behavior towards the people in enemy territory was distin-
guished by arrogant contemptuousness, I shall prove that he was
in reality a man of varied interests and of comprehensive ideas
whose aim it was by thorough research to acquire conception of
land and soul of foreign nations in order to act to their
advantage.

4. With regard to the accusation that the defendant permitted
himself to be guided in his activities by a well thought-out pro-
gram of terror and destruction, I shall refute that by proving
that in order to pacify the country it was all important to him
to make the occupation bearable and as little oppressive as pos-

898

sible, to take into account all desires in any manner reasonable
and all needs of the population, and further to do all in his power
in order to exclude or limit the influence and activities of men
and authorities who in ignorance of the problems prevalent in the
Balkans aggravated conditions by their faulty measures.

5. To refute the allegation that the defendant proved himself
a henchman and tool of Himmler, Sauckel, and of other Nazi
worthies, I shall give a true and complete picture of his person-
ality, and thereby make clear his attitude to the dictatorship.

6. As to the accusation that the defendant Foertsch had proved
himself the evil spirit who was responsible for the tragic uni-
formity of the terms of service of List, Loehr, and von Weichs,
I shall refute that, by giving an explicit picture of his activities
as they really were. Therefore, I shall first prove what tasks
and authorities were not those of a chief of staff of an army
or of an army group according to the service regulation then in
force. The following limits were set to the activities of the chief
of staff:

a. He had no authority to give orders or commands to the
troops.

b . He had no authority to supervise the troops nor did he have
a disciplinary or judicial authority with regard to the troops.

c. He had no right to decide in fundamental questions.

d. Thus, he had no responsibility with regard to the troops.

I shall prove that the defendant Foertsch observed the limits
which according to the existing regulations were set to his activ-
ities and that thus he nerer — (a) gave any orders himself, or
( b ) made any decisions himself exceeding his authority.

I shall prove that according to the existing regulations his task
was merely that of a first adviser to the commander in chief.

He actually understood his responsibility in such a manner —
(a) that he never tried to provoke stringent measures, (b) that
it was rather his aim to help reasonableness to prevail, and ( c )
that in consequence he was not a bad but a good spirit.

7. But in order to point out the difficulties with which he had
to cope, I shall describe the obstacles with which he had to deal.
These were —

a. The dictatorship which could be felt on all sides.

b. He was bound by his oaths.

c. The orders which were issued to the commander in chief by
his superior authority and were considered by him himself as
binding.

d . The orders which had to be issued directly to subordinate
troops by these superior authorities which made their activities

899

independent of the orders of the jurisdiction of the commander
in chief.

e. The threat of punishment existing according to the laws then
in force.

/. The small understanding which the High Command of the
Army showed to his submissions and suggestions.

8. That General Foertsch in his capacity as chief of staff did
not help to bring about the tragic uniformity of the reprisal
measures, which has been stressed by the prosecution, I shall
refute by proving that —

a . He was absent just during such times when incisive and
fundamental orders were issued.

b. He did not consider the part which he had to play as in any
manner satisfactory but he tried to be released from these tasks
which he felt to be unpleasant and oppressive.

Count one of the indictment charges the defendants with having
madly unleashed a senseless torrent of death. This formulation
implies two things, namely:

a. That the defendants had instituted measures of hostage
taking and shooting of hostages arbitrarily, that is, without cause
and without any necessity in blind madness.

b. Disregarding the assertion that every reasonable cause for
these measures is supposed to be lacking, they are supposed to
have been senseless also with regard to their alleged or asserted
reasons which is obviously to be expressed in the words “sense-
less torrent of deaths.”

With regard to these allegations and at the same time with
regard to count two of the indictment, I shall prove the following:

a. From the very beginning it was the aim of the military
leaders in the southeast area to achieve a real pacification of the
country which was to be also in the clearly conceived interests
of the population of the occupied territory.

b. These reasonable endeavors of the military leaders were
defeated for reasons for which not they but in the first place the
opposition were responsible.

c . The success which was to be achieved by these measures
could in part not be realized because conditions occurred which
could not have been foreseen when the above measures were
ordered.

Count three of the indictment — shooting of prisoners of war.
Here we have to differentiate between the following:

1. Shooting of members of Yugoslav and Greek forces.

2. Shooting of members of other Allied forces —

a . By reason of the Commando Order.

b. By reason of the Commissar Order.

900

3. Shooting of members of the Italian forces.

To 1 — As far as the Yugoslav and Greeks, who had been shot,
were concerned they were not members of the armed forces of a
nation at war but insurgents who by fighting placed themselves out-
side of the realm of law, which is shown by the following :

a. Capitulation of Yugoslav and Greek armies carried out by
the commanders in charge.

b. The actual power in these countries had been transferred to
Germany as the occupying power.

c. The fight was resumed in violation of international law.

d. The internationally accepted land and war regulations were
not adhered to.

e . Furthermore, the recognition of a power, as a power at war,
is a political decision which was not the task of the military
leaders in the Southeast.

/. The military leaders in the Southeast endeavored to achieve
political recognition of a state of war without being able to raise
any legal claims with regard to that.

g. In spite of the fact that this recognition which they were
trying to achieve was refused, the captured partisans were treated
as prisoners of war.

To 2—

a. Shootings by reason of the Commando Order were not car-
ried out.

b. The Commissar Order did not apply to the Southeast.

To 3 — Shooting of members of the Italian forces. I shall prove
that the individuals shot were to be regarded as partisans accord-
ing to international law because of the following facts:

a. By breaking her alliance with Germany and by virtue of her
capitulation, Italy lost her authorities which she had enjoyed in
her capacity as occupying power.

b. The territories in the Balkans which had so far been occu-
pied by Italy now became exclusively German operational terri-
tory.

c. The organized armed forces of a power which had suddenly
become hostile and which were in this territory constituted an
extraordinary danger to the operational projects within the Ger-
man operational sphere. Thus, the German request to surrender
all arms was justified.

d. This request was consequently acceded to in the form of
appropriate orders of the Italian commanders in charge.

e. The Italian soldiers or units which in spite of that continued
to carry arms against the German troops were acting contrary to
international law.

To count four of the indictment — It is alleged that the defend-

901

ant had, without any reason connected with military operations,
helped to free southeastern Europe from so-called inferior per-
sons, as for example: Jews, politically unreliable individuals, e.g.,
democrats and Nationalists. And that they helped to enslave
and deport millions for forced labor. As to that I am going to
prove —

a. That the internment of certain groups of individuals in
collection camps and the evacuation have been approved by the
military leaders in the Southeast only insofar as this was neces-
sary in order to pacify the country and to secure operational
objects.

b. That the military leaders in as far as they cooperated in
the procurement of indigenous labor did that only because they
considered this a way to pacify the country.

c. In as far as such measures could not be justified by military
necessity the military leaders had no influence on these matters.
The above mentioned points I shall prove —

(a) By examining the defendant as a witness on his own
behalf.

( b ) By presentation of documents.

( c ) By examination of witnesses.

At this point I should like to mention that at the time when the
defendant Foertsch will appear in the witness stand this eviden-
tiary material will still be very incomplete. Besides the diffi-
culties, which are well known and which have been described
in the motion for adjournment brought by my colleague, Dr.
Laternser, as well as by me with regard to the procuring of
affidavits, as well as the translation of the document books must
in this particular case be added that the defense has so far not
had any opportunity to examine those documents which had been
presented to the prosecution in the form of excerpts to the full
extent. This alone would give counsels for the defense the oppor-
tunity to prove the reasons for the shootings about which the
prosecution has brought numerous examples from the same docu-
ments. So far it is not possible to say whether or not counsels
for the defense will get the opportunity to do that at all. For
that reason I must reserve the right even at this stage, to make
this extraordinary limitation of the defense which in the case of
the defendant Foertsch may possibly lead to grave incompleteness
of his evidentiary material the subject of an appeal which may
possibly have to be lodged in this case.

I refrain from legally arguing against the charges which have
been brought in the case of Foertsch at this stage. I shall do
that in the course of my plea, but I should at least like to point
out that I shall base his defense in the first place on the problem

902

of participation according to criminal law. This comprises the
following legal problems :

1. Is a mere “knowledge” of and “being connected with” the
retaliation measures which have been designated by the prose-
cution as criminal actions sufficient to condemn the defendant
Foertsch. I should like to correct here that instead of retaliation
measures it should simply be measures.

2. If that is not sufficient, with which positive actions or
omissions contrary to his duties is he charged which prove that
he aided in any criminal actions. Did he, as chief of the general
staff, have any responsibility according to criminal law for
retaliation measures which were ordered by others and in turn
were carried out by others.

This last word “retaliation” again I would like to have corrected
to “measures.”

903

IV. THE THEATER OF WAR IN SOUTHEASTERN

EUROPE

A. Introduction

Substantial argument and evidence on the organization of the
German armed forces was offered in both the High Command
and the Hostage Cases. In the first volume on the High Command
Case, substantial evidence on the over-all nature of the German
military organization has already been reproduced. See Vol-
ume X, section IV, ‘The Organization of the German Armed
Forces — Selections From the Evidence.” ( United States vs. Wil-
helm von Leeb , et al., Case No . 12.) The instant section is in-
tended to supplement the materials previously reproduced by the
addition of representative materials concerning the military
organization in southeastern Europe.

The “Basic Information” submitted to the Tribunal as a brief
and not as evidence contains charts which the prosecution offered
to assist the Tribunal in understanding the evidence itself (sec-
tion B). The position and activities of satellite governments and
satellite troops in the Balkans came into the proof by means of
numerous contemporaneous documents, a few of which are repro-
duced in section C. The relation of the German Army in the
Balkans to special SS and police agencies, particularly the Secu-
rity Police and the Einsatzgruppen, likewise played a role in the
case (section D). Testimony of the defendant Rendulic (sec-
tion E) concerning the authority of various German agencies in
the Balkans concludes this section.

Evidence in the later sections further deals in greater detail
with such matters as the chain of command, the distribution
and execution of orders, and the position of particular defendants
in relation to the matters mentioned in numerous contempora-
neous documents.

904

4

the

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ary I

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and

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sin

B. Organization of the German Army

EXTRACTS FROM THE “BASIC INFORMATION”
SUBMITTED BY THE PROSECUTION *

* * * * * * *

C. Types of army field units

*******

8. The standard German division was known as an “infantry”
division and comprised two or three infantry regiments, an
artillery regiment, and various specialized battalions and smaller
units. However, the German Army included a variety of other
types of divisions. The more important were —

a. The mountain division, which consisted of troops specially
trained and equipped for operations in mountainous terrain.

b. The light division [Jaegerdivision], a variant comparable
to the mountain division but often with more motorized equip-
ment.

c. The Panzer grenadier division, which was basically a motor-
ized infantry division, and usually included a tank battalion.

d. The Panzer division, which was the standard armored divi-
sion of the German Army.

e. The security division, designed for “mopping-up” or occu-
pational duties in rear areas and usually consisting of older
soldiers not suited for front line employment.

/. The reserve division, which usually comprised units sent
from Germany to occupied territories, in order to receive training
and perform occupational duties.

The standard type of corps controlled a group of divisions in
which infantry divisions predominated. However, if it controlled
an unusual number of Panzer divisions or mountain divisions, the
corps was often designated a “Panzer corps” or “mountain corps”.

At the beginning of the war, there were no specially designated
“armies,” but during 1942 the “armored groups” used in the
campaign against the Soviet Union were given the status of
armies and were thereafter designated “Panzer armies.” At the
end of the war, six of the twenty-two German armies were
“Panzer armies.”

9. German Air Force field units. The German parachute troops
employed in the early part of the war, as at Rotterdam and Crete,
were part of the German Air Force. During the latter part of
the war there was no opportunity for their employment as para-

* This “Basic Information” was in the nature of a brief and not submitted as “Evidentiary”
material. See the remarks of the defense counsel, the prosecution, and the Tribunal which were
made during the opening statement of the prosecution in section IIIA.

905

chute troops, and they were utilized as regular infantry troops
under the command of the army, although they continued to be
administratively part of the air force. At the end of the war
there were eight “parachute divisions,” two “parachute corps”
headquarters, and one “parachute army” headquarters.

In addition, there were a number of infantry divisions formed
from personnel of the air force and known as German Air Force
field [Luftwaffenfeld] divisions. Twenty-one or more such divi-
sions were created, but many of them were disbanded before the
end of the war.

10. SS field formations [WafFen SS]. When the war broke
out in 1939, Himmler commenced the formation into divisions of
units of the SS, armed and trained for employment with the
army. Only two or three such divisions were formed prior to
the Russian campaign, but by the end of the war there were no
less than thirty SS divisions, most of them with special names,
such as “Das Reich,” “Prinz Eugen,” or “Hitler jugend.” Many
of them were Panzer or Panzer grenadier divisions, but they in-
cluded some mountain, infantry, and even cavalry divisions. In
addition, the SS formed a number of corps headquarters (includ-
ing Panzer and mountain corps) and one SS Panzer army head-
quarters. During the latter part of the war, the members of
SS divisions were often drawn from the population of occupied
countries.

For certain administrative purposes, the WafFen SS units
remained part of the SS and under the control and command of
Himmler as Reich Leader SS. However, for combat, and in occu-
pied areas, the SS divisions were under the command of the
army and their employment differed little from that of the regu-
lar divisions of the army.

* * * * * * *

CHARTS

The following charts are designed to show the subordination
and order of battle of the more important headquarters and units
of the German Army in southeastern Europe and in northern
Norway during the evacuation of Finmark. Because of frequent
changes in the location and subordination of various units and
in the composition of higher headquarters, the charts do not
necessarily give a complete and accurate picture for any par-
ticular date. Likewise, unimportant units, or units which are
not referred to in the evidence in this case, have been omitted.
The charts are based chiefly on captured documents and interro-

906

Chart A— ORDER OF BATTLE OF THE XVII CORES
OF THE 12TH ARMY

o bp I

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rps” I

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not gations of German officers, and are believed to be sufficiently
jar- accurate for all practical purposes in this proceeding.*

* Nine charts, marked A through I, were included in “Basic Information". Three of these
j£(j charts (charts C, D, and G) have been reproduced where they were referred to in the opening
statement of the prosecution in section III A. (pp. 794, 819, 836). The balance of these
I’rO* charts are reproduced on this and following pages.

89S964 — 51 59

907

Chart B— ORDER OF BATTLE OF THE LXV CORPS
OF THE 12TH ARMY

Chart E— ORDER OF BATTLE OF ARMY GROUP E
(August 1943-March 1945)

909

Chart F— ORDER OF BATTLE OF 2D PANZER ARMY
(August 1943-June 1944)

910

Chart H— CHAIN OF COM-
MAND FOR ARMED
FORCES COMMANDER
SOUTHEAST

(June 1941-Augu8t 1942)

Chart 1 — CHAIN OF COM-
MAND FOR ARMED
FORCES COMMANDER
SOUTHEAST

(AuguM 1942-January 194$)

911

C. Relations of the German Army with Satellite
Governments and Satellite Armed Forces’

PARTIAL TRANSLATION OF DOCUMENT NOKW-1028^
PROSECUTION EXHIBIT 197

EXTRACTS FROM OPERATIONAL ORDER NO. 5 OF 7I8TH INFANTRY

DIVISION, 14 APRIL 1942, CONCERNING SUBORDINATION OF
CROATIAN ARMED FORCES AND USTASHA TROOPS
UNDER GERMAN COMMAND

[Stamp] Secret

[Handwritten] War Diary

718th Infantry Division
Az 8 op Branch la
No. 1323/42 Secret

Divisional Staff Headquarters, 14 April [19] 42

OPERATIONAL ORDER NO. 5

1. Enemy — In the area between Praca, Visegrad, Drina, Reka,
Han Pijesak, and Gromile, insurgents (primarily partisans) have
again established themselves. The exact strength cannot be
stated.

Enemy situation — See enclosure 4.

2. Mission — The enemy is to be annihilated wherever he shows
himself. This time it must be done thoroughly, in order to mop
up the area completely and to pacify it. Since the weather is
favorable at this time, the troops will fulfill this mission also.

3. Own forces — Participating in the operation — German,
Italian and Croatian units.

Pursuant to the directive of the commanding general and com-
mander in Serbia, Lieutenant General (Artillery) Bader, all
troops of the 718th Infantry Division, troops of the commanding
general and commander in Serbia arriving in the area described
above, units of the Croatian armed forces and the Ustasha units
are under my command. These troops will be organized in groups
according to enclosure 1.

The subordinate troops of the commanding general and com-
mander in Serbia, of the Ustasha, and of the Croatian armed

1 For the background to the German occupation of Yugoslavia and Greece see “The Aggression
against Yugoslavia and Greece” in the judgment of the IMT, Trial of the Major War Criminals,
op. cit. supra, vol. I, pp. 2 10-2 IS.

3 Enclosure 3 to this order, titled, “Combat Directive” (NOKW-1028, Pros. Ex. 197), is repro-
duced below in section VB.

912

forces will be subordinate to the 718th Infantry Division tactically
and for rations and quarters.

All measures concerning equipment and ammunition supplies
for these troop units will be regulated by the 718th Infantry Divi-
sion via their respective offices.

The groups will be issued orders directly by me.

Tactical reports of the groups are also transferred to me
directly.

[Signed] Fortner

Enclosures —

1. Organization of Groups

2. Identification Signals

3. Combat Directive

4. Enemy Situation

5. Special Directive for Signal Communication

6. Special Directive for Supply

Distribution :

Group Suschnig
Group Wuest
Group Francetic

Group Commander Serbia (2 copies)

668th Artillery Battalion

Commanding General and Commander Serbia (3 copies)
German General in Zagreb
Operations Staff Combat Group, General Bader
Croatian General (3 copies)

718th Signal Communications Company
718th Engineer Company

On the premises — Commanding Officer, la, lb, Ic, Ila, III, IVa,
IVb, IVc, Staff Quarters, War Diary (2 copies), retained (5
copies) .

913

PARTIAL TRANSLATION OF DOCUMENT NOKW-076
PROSECUTION EXHIBIT 338b

TELETYPE FROM 2d PANZER ARMY TO PLENIPOTENTIARY GERMAN
GENERAL IN CROATIA, 17 SEPTEMBER 1943, CONCERNING
DESERTION OF CROATIAN UNITS

Teletype Office

875/2389

[handwritten]

OB [CinC]

Has been submitted

Teletype Code
43 Secret

Address Current Number Section 513/

Receipted for :

Sent:

Received :

Date : 18 Septem-

[Illegible stamp]

ber 1943

17 September 1943

Time:

At 0530 hours

By:

To : HURX/Qu 1940

[Initialed] Fr

Through :

Through : [Illeg-

ible initial] 19
Reel:

[Marginal note] To be filled out by teletype office.

Remarks: Secret
Teletype :

Postal Telegram : From : 2d Panzer Army, la 453/43 Secret

Telephone : [Illegible] 5838

17 September 1943 1900 hours To : Plenipotenti-

Date of Transmission Time of Transmission ary German

General in
Croatia

Remarks for transmission :

(To be filled out by sender)

You are requested for information as to what measures are
being taken in order to prevent the further dissolution of the
Croatian armed forces. The 2d Panzer Army believes the best
means would be reprisal measures against family members of the
"traitors to their country,” to stop further desertion of the

914

Croatian units and the subsequent dissolution of the Croatian
armed forces.

2d Panzer Army No. 453/43, Secret

Copy:

Ic

Kn

Certified :

[Illegible signature]
1st Lieutenant

[Handwritten] Taken care of
[Illegible signature]
Corporal

TRANSLATION OF DOCUMENT NOKW-1099
PROSECUTION EXHIBIT 251

ORDER OF COMMANDER OF GERMAN FORCES IN CROATIA,

7 JANUARY 1943, CONCERNING THE EXERCISE
OF EXECUTIVE POWER

[Stamp] Top Secret

[stamp] 10 January 1943

[Handwritten] 1177a
Current No. 9

[Stamp]

718th Infantry Division

Received 10 January 1943, Top Secret

No. 8/43

[Illegible initial]

Section la

Commander of the German Forces in Croatia
la No. 21/43 Top Secret

[Illegible initial]

Local Headquarters, 7 January 1943
16 copies — 3d copy

Subject : Exercise of executive power

The development of the situation in Croatia again necessitates
a clarification of the chain of command, together with a summary
of the previous directives.

1. The areas of the 714th and 718th Divisions are operation
areas.

915

Boundaries — German-Italian demarcation line, Drina-Save
[Sava], line Sisak-Bihac (up to demarcation line). Separation
line betweeen 714th and 718th Divisions as before. Holders of
executive power within their area are Major General Fortner
and Brigadier General Reichert. The commander of the German
forces in Croatia reserves to himself the right to issue directives.

2. All armed Croatian units situated in the area designated
in paragraph 1 are subordinated to the divisions. If possible,
some responsibility of their own is to remain with the Croatian
headquarters. A breaking up of the Croatian units just formed
is unwelcome.

3. The refitting and reorganization, and if necessary the purg-
ing of the Croatian armed forces is to be carried out vigorously.
Ustasha units, as far as has not already been done yet, are to
be incorporated into the Croatian reserve and are to be formed
into units not below battalion strength.

4. Rigorous measures are to be taken against the population.

a. In unreliable areas the male population from 15-50 years
is to be lodged in assembly camps. Deportation to Germany is
intended. [Handwritten] Chetniks * * * [Illegible]

b. Partisans and partisan suspects, as well as civilians in whose
homes arms and ammunition are found, are to be shot or hanged
immediately; their homes are to be burned down.

c. Town headquarters (German, or Croatian in purely Cro-
atian garrisons) are authorized to decide the hour of curfew for
the entire population.

d. In cases of offenses against German regulations, fire arms
are to be used ruthlessly and extensively.

e. Personages of the Croatian state, whose cooperation is not
sufficient, are to be arrested for sabotage.

5. A general notification in the sense of these directives is
being forwarded to the divisions. Further directives will be
issued by the holders of executive power according to para-
graph 1.

6. The Plenipotentiary German General in Croatia is requested
to notify all Croatian headquarters of this order.

[Signed] Lueters

Distribution being drafted.

916

PARTIAL TRANSLATION OF LIST DOCUMENT 202*
LIST DEFENSE EXHIBIT 46

EXTRACTS FROM DAILY REPORTS CONTAINED IN WAR DIARY OF
MILITARY COMMANDER SERBIA, SEPTEMBER 1941, CONCERNING

THE ACTIONS AND DIFFICULTIES OF SERBIAN GOVERNMENT

[Handwritten] Appendix 33
Urgent 503

To: Armed Forces Commander Southeast (12th Army) la
Daily Report —

1. and 2. Nedic government apparently does not have the antici-
pated success and does not seem to be able to assert its authority.
Insurrection movement extends to the area east of Pozarevac.

3. Attack by dive bombers against manned road obstacles in
the area of Sabac. Continued air reconnaissance, also in area of
the Iron Gate.

4. Police units committed by the Serbian Government in agree-
ment with Commander Serbia have so far not been in combat
against the Communists. In one case refusal to engage in battle.
In another case a police unit of 60 to 80 men on the march to
their assigned position have surrendered their arms to the Com-
munists without a fight.

5. Attacks on five railroad stations, one of them on the rail line
Belgrade-Nis on 10 September. Rail line near Davidovac (Zaje-
car-Paracin) dynamited for the third time. On 10 September
bands fired on armored train near Mladenovac. On 10 September
Morave-bridge (7 km., northwest of Kraljevo) as well as two
more wooden bridges destroyed. On 11 September road Ljubo-
vija-Rogacica blocked and occupied. Telephone lines Pozarevac-
Petrovac and Nis-Leskovac interrupted. No connection with
Uzice. Rail traffic Belgrade to Greece is open at the present
time.

6. Serbian administration in the rural districts paralyzed by
armed revolts.

7. Eight more band attacks on communities and their installa-
tions. City Commandant [of] Belgrade has so far been able to
maintain order and tranquillity in spite of scattered attacks by
Communists.

8. Terrorism increases against the workers who are still will-
ing to work in plants which produce for the German economy.

* Other parts of this document are reproduced in sections D and VB.

917

Commander Serbia Headquarters Staff Ia/F 12 September 1941

Certified :

[Signature illegible]

Captain, Cavalry

1400 hours

COPY

[Handwritten] Appendix 34

Staff Headquarters, 12 Sept. 1941

Jais, Major in the General Staff

Liaison Officer of the Armed Forces Commander Southeast

to LXV Higher [Corps] Command

Opinion about the military situation in Serbia

On the basis of the descriptions received from Commander
Serbia and the LXV Higher [Corps] Command, regarding the
military situation in Serbia, my opinion about the situation is
as follows :

I

The armed revolt in the area of the Commander Serbia is
increasing. The main areas of the revolt which in general extends
to the entire occupied territory seem to be in the Drina-river bend
with the principal towns of Loznica and Krupanj, in the Sava-
river bend west of Sabac, and in the area Obrenovac-Valjevo.

A Croatian colonel who had voluntarily participated in a local
operation in the area of Loznica assumes that the headquarters
of the insurrection movement is located in Almhuetten [alpine
huts] near Cer. PI. [Planina] 25 km., southwest of Sabac. The in-
accessibility of this terrain and its location in the center of two
main areas of revolt make this assumption appear very probable.

The insurrection movement has already grown to such an
extent that at present military units in the strength of a battalion
cannot be moved any longer without facing the danger to be
engaged in combat by the insurgents and be encircled in mostly
roadless terrain.

The dispatching of half a battalion for the purpose of relieving
our own encircled troops has in some cases already resulted in
failures.

If a major German troop unit appears, one can generally expect,
according to the way of fighting shown so far by the insurgents,
that the enemy will retreat , or, after throwing away their
weapons, attempt to disguise themselves as harmless native resi-
dents . This conduct by the insurgents, however, seems to be
improbable in the above mentioned main areas of revolt since the

918

bands there have a strength which enables them to take up a
fight with the troops. The opinions about the strength of the
enemy in the Sava-river bend west of Sabac vary betweeen 2,000
and 10,000 men. According to the statement of Staatsrat Turner
about 2,000 insurgents with 50 machine guns are said to be in
this area. So far I have not yet been able to estimate the enemy’s
strength in the rest of the areas.

Movements of motorized troops or individual combat cars is
not possible at the present time in large areas because of numer-
ous manned road and highway blocks. The CG of the 704th
Infantry Division who had arrived from the Reich in Belgrade
was compelled to continue the trip to his Staff in Valjevo by
airplane since the road Belgrade-Valjevo is blocked at several
places.

II

The new Serbian Nedic Government will not be in a position,
even through further arming of the Serbian police, either to
check the revolt or to quell it completely.

Thus, according to the statement of Staatsrat Turner, the
Serbian police in Sabac was reinforced with 400 men in order
to restore tranquillity in that area. This police unit, however, is
idle in Sabac for days because the unit considers itself too weak
for an action against the insurgents in the more distant sur-
roundings of Sabac. Prime Minister Nedic has asked Staatsrat
Turner in a letter, dated 11 September, to appoint a German
commander to direct the attack against the insurgents in the
area of Sabac. This action taken by the Prime Minister must
be regarded as a proof of his own weakness.

III

The available troops, according to their numbers, kind of
training, and armament, are inadequate to quell the revolt. With
the forces at present at our disposal, a restraint of the insurrec-
tion movement will at the best be accomplished only through a
strong concentration of the forces and ruthless action.

It is difficult to accomplish the strong concentration of the
forces because of the numerous tasks of security requested from
Higher [Corps] Command LXV. In order not to lose the objects
to be secured, such as railroads, waterways, industrial installa-
tions, etc., the units of the occupational divisions are necessarily
spread over large areas.

* ❖ $ * Ht *

919

[Handwritten] Appendix 40

To Armed Forces Commander Southeast (12th Army) la
Daily Report

Urgent 503

* * * * * * *

3. Because of failure of Serbian gendarmerie battalion in
Sabac, the 3d Battalion, 125th Infantry Regiment, and the 2d
Battery, 220th Artillery Regiment, temporarily transferred there.

*******

Commander Serbia Headquarters Staff Section Ia/F

13 September 1941
Certified :

[Signature illegible]

1500 hours Captain, Cavalry

[Handwritten] Appendix 44

To Armed Forces Commander Southeast (12th Army)
Strategic and Tactical Planning Staff

Urgent 503

Daily Report

1. Combat operations of Serbian gendarmerie appear to have
strengthened the reputation of the Nedic government.

2. Serbian Government plans to form special courts to deal
with saboteurs and criminals. Death penalty threatened. Further
measures to strengthen the administration have been effected.
*******

Certified :

Commander Serbia/Ia/F, 14 September 1941
[Signature illegible]

1330 hours Captain, Cavalry

[Handwritten] Appendix 46

To the Armed Forces Commander Southeast (12th Army)

Urgent 503

Daily Report

1. No changes.

2. 15 September. Radio address by Minister President [Nedic]
to the Serbian people requesting the insurgents to lay down arms,

920

return from the forests, cease all sabotage acts, and refrain from
showing hostile attitude towards the occupation troops. (Ulti-
matum given till 17 September 1941.)

3. Higher [Corps] Command LXV instructed to conduct clean-
ing-up operation in the area of Obrenovac — Ub — Kaljevo.
*******
Commander Serbia Headquarters Staff/Ia/F, 15 September 1941

Certified :

[Signature illegible]

Captain, Cavalry
1345 hours

[Handwritten] Appendix 52

To Armed Forces Commander Southeast (12th Army) la

Urgent 503

Daily Report

1. Minister President Nedic’s radio proclamation repeated, as
evidently good results. Distribution received here.
*******
6. Government cleans up administration.
*******
Commander Serbia Headquarters Staff/Ia/F, 16 September 1941
Certified :

[Signature illegible]

Captain, Cavalry

[Handwritten] Appendix 70
Urgent 503

To Armed Forces Commander Southeast (12th Army)

Daily Report

1. The political situation increasingly difficult, can be consid-
ered as very serious. If

2. The government tries to establish quiet without success.
*******

7. Attacks on soldiers and Serbian rural policemen repulsed
near Arandjelovac. 1 Communist dead. 18 September. At
Knesevac (10 kilometers southwest of Belgrade) attack on a
police-patrol by firearms. No casualties.

921

8. Mines at Sevica and Brodica near Kurzevo attacked and
plundered.

Commander Serbia Headquarters Staff,
Section la, 19 September 1946, 1350 hours

Certified :

[Signature illegible]

Captain, Cavalry

[Handwritten] Enclosure 76

Commander Serbia
Headquarters Staff
Operations Section [Ia/F.]

Belgrade, 20 September 1941
[Illegible initial]

To XVIII Army Corps Headquarters, Belgrade
Daily Report

1. The political situation continues to be increasingly difficult.
It is to be considered as very serious.

2. The government is trying to establish quiet without success.

3. Since this morning, insurrectionists have attacked the water-
ways’ police and the customs station V. Gradiste (Danube) as
well as a German ship to the east of it. Two ships with a platoon
of a police battalion and half a company of 433d Infantry Regi-
ment as well as a raiding detachment from the vicinity north of
Pozarevac were sent by way of the Danube to fight them. Armed
air reconnaissance employed in the Danube area there.

4. Serbian railway guards armed in July 1941 with 1,500 rifles.
Due to the development of the situation an honorable turning
over of arms has been ordered according to a note addressed to
the Nedic government. Eighty-five percent have already been
collected, the remaining will be returned as soon as conditions at
the railroad permit. 17 September, gun battle between a Serbian
rural police detachment and a Communist band near Mala Ivanca
(12 kilometers south of Grocka). Enemy casualties — 1 dead, 20
captured. 18 September, armed attack on a Serbian rural police
detachment near Grocka. Seven Communists, among them two
women teachers, captured. Weapons and ammunition captured.
18 September, in a battle between Chetniks and Communist bands
northwest of Prokuplje, 2 Chetniks wounded. Enemy casual-
ties — 2 dead, 3 wounded.

5. 19 September, bridge blown up near Rabrovo (Belgrade-
Kucevo) . Traffic interrupted. 19 September, attack on railroad

near Mokrin (Banat). Traffic continues. Telephone lines in the
area Uzice-Cacak continue to be interrupted. Route Semlin-
Indija wires cut, 20 September.

6. Due to further attacks on rural communities the postal,
railroad, and customs administrations outside of Belgrade and
of the Banat inactivated.

7. 19 September, technical office of the Communist party at
Belgrade raided. One Communist leader and 5 members arrested.
19 September, 42 Communists arrested in a raid at Cukarica
(4 kilometers south of Belgrade). Three hundred suspected
gypsies arrested. Three further rural communities attacked by
bands. Archives destroyed. There are no reports about rural
communities attacked from the area Uzice-Cacak. Aside from
Uzice and Cacak almost all rural communities are in the hands
of the Communists. The population sabotages wood and food
supplies in both cities.

8. The condition of industry unchanged.

For the Commander Serbia
The Chief of Staff
[Signed] Graven horst
Lieutenant Colonel, GSC

* ** * % ❖ * *

PARTIAL TRANSLATION OF DOCUMENT NOKW-899
PROSECUTION EXHIBIT 250

LETTER FROM COMMANDING GENERAL SERBIA TO PRIME MINISTER
NEDIC, 22 JANUARY 1943, CONCERNING REPRISAL MEASURES
BY THE SERBIAN GOVERNMENT

Headquarters, 22 January 1948

Commanding General and
Commander in Serbia

la No. 103/43

Subject : Reprisal measures

Reference: Serbian Ministry of the Interior 83/43 of 20 Janu-
ary 1943

To : Prime Minister Nedic

I agree to the petition for shooting to death 10 insurgents as
reprisal for the murder of the head of the community of Samaila
on 26 December 1942.

893964—51 60

923

I ask you to tell the head of the district to get in touch with the J by t v
administrative district headquarters Kraljevo and to decide about troop
the details. Please have the publication done by your administra- I darn
tive offices and inform us when this has been completed.

[Initialed] H I Disti

[Signed] Bader Re

Lieutenant General, Artillery ' Ch

*******

D. Cooperation of the German Army with the
SS and the Einsatzgruppen*

PARTIAL TRANSLATION OF DOCUMENT NO-2943
PROSECUTION EXHIBIT 21

EXTRACTS FROM SITUATION REPORT U.S.S.R. NO. 28 OF THE ! EXTR
SECURITY POLICE AND SD, 20 JULY 1941, CONCERNING
REPRISAL ACTIONS IN SERBIA

The Chief of the Security Police
and of the SD

IV A 1— B. No. 1 B/41 Top Secret

Berlin, 20 July 1941
36 copies — 27th copy

To the Einsatz Communication Officer

RR. Paeffgen — or representative on the premises

[Stamp] Top Secret!

Situation Report U.S.S.R. No. 28
1. Political review —

*******

b. Yugoslavia — The German General Lomtscha [Lontschar],
Division General of Uzice was fired on by bandits on the road
between Uzice and Valjevo in the afternoon of 18 July 1941.
The general was not hit; his executive officer was shot in the
chest. By order of the Military Commander Serbia an operation
was initiated with the task of searching for roving bands in the
entire territory. This operation was carried out on 19 July 1941

* The “Einsatzgruppen” were special units of the SS which were sent to territories occupied
by the German Army. A number of the leaders of the Einsatzgruppen were tried in the “Ein-
satzgruppen Case.” (U.S.A. vs. Ohlendorf, et al.. Case 9, vol. IV.)

The
IV j

I.

c.

*

Ir

Gen

Slip]

»ifi

•c

m

924

by two companies of the German municipal police corps and the
troops stationed in Uzice in cooperation with the Serbian gen-
darmerie and the Einsatzgruppe of the Security Police and SD.

*******
Distribution :

Reich Leader SS and Chief of the German Police
Chief of the Security Police and SD
Chief of the Regular Police

OKW Operations Staff, Lieutenant Colonel Tippelskirch *

All Office [Amt] Chiefs.

*******

PARTIAL TRANSLATION OF DOCUMENT NO-2944
PROSECUTION EXHIBIT 22

EXTRACTS FROM SITUATION REPORT U.S.S.R. NO. 30, 22 JULY 1941,
CONCERNING REPRISAL ACTIONS IN YUGOSLAVIA

[Stamp] Top Secret

Situation Room, Berlin, 22 July 1941
36 copies — 27th copy

The Chief of the Security Police and SD
IV A 1— B No. L B/41 Top Secret

[Stamp] Top Secret

Situation Report U. S. S. R. No. 30

I. Political Survey —

*******
c. Yugoslavia —

*******

In reprisal for the attempted attack on the life of the German
General Lomscha [Lontschar] near Uzice, 52 Communists, Jews,
and families of band members in the villages of Uzice, Valjevo,
and Cacac were shot to death on 20 July [19] 41. In addition to
the previously reported measures a large scale operation with
support of armed forces units is in preparation, in agreement
with the Military Commander Serbia.

*******

* Chief of the Quartermaster Section of the Armed Forces Operatiotns Staff. (United States
vs. Wilhelm von Leeb, et al.. Case 12, vol. X.)

925

Distribution :

Reich Leader SS and Chief of the German Police
Chief of the Security Police and SD
Chief of the Regular Police

OKW Operations Staff, Lieutenant Colonel Tippelskirch
All Office [Amt] Chiefs

* * * * * * *

TRANSLATION OF DOCUMENT NOKW-529
PROSECUTION EXHIBIT 35

ORDER OF MILITARY COMMANDER SERBIA, 21 AUGUST 1941,
CONCERNING TRANSFER OF CAPTURED PARTISANS
TO EINSATZGRUPPEN

Commander Serbia
Headquarters Staff
Section la No. 397/41, Secret

[Illegible initial]
21

[Handwritten] Chief

la — Belgrade, 21 August 1941
[Illegible initial]

[Stamp] Secret

[Stamp]

Higher Corps Command for
Special Missions [z.b.V.] LXV
Received 27 August 1941, Section Ic
Diary No. 454/41, Secret

[Stamp]

LXV Higher Corps Command for
Special Missions

Section la, Diary No. 517/41, Secret
Subject : Transfer to security police of bandits captured in combat

1. In regard to the capture of bandits captured in combat,
vagueness exists in almost all authorities, which emanates from
the delays of the interrogation and the proper treatment of the
people.

926

2. As a matter of principle all bandits are to be transferred to
the “Einsatzgruppe of the Security Police and SD” — in the fol-
lowing [paragraphs] designated by the official abbreviation “SP.”

3. Prisoners taken in Belgrade are to be delivered to the SP
in the police prison Alexandrova 5.

4. If prisoners are taken they are to be transferred as rapidly
as possible to the nearest administrative subarea headquarters
or district headquarters. If possible, prior announcement should
be made, so that preparations can be made. Telephone discipline
is to be observed thereby.

5. There are experts of the SP attached to the administrative
subarea headquarters who can give information in case of doubt.

6. Together with the prisoners to be delivered, a brief report
is to be sent regarding the circumstances of the capture. As a
matter of principle protracted proceedings by the unit etc., are
to be avoided, except in special individual cases.

7. It has happened that units and organs of the indigenous
police service have retained prisoners and exposed them to long
interrogations without enabling the SP to get hold of these
people. Such interrogations are , as stated above, the affair of
the SP.

8. In this connection, attention is to be called expressly to the
fact that the unit is authorized to shoot down any prisoner
attempting to escape.

Distribution: Plan C

On the Premises — la 02, Ha, III, Kdt., IVb, IVc.

[Distribution subsequently added on bottom of page 1 of
original document]

9. This explanation pertains accordingly to all other political
prisoners.

Distribution being drafted.

For the Commander Serbia :

The Chief of Staff
[Signed] Gravenhorst
Lieutenant Colonel, GSC
[Initials] Fe

927

PARTIAL TRANSLATION OF LIST DOCUMENT 202*
LIST DEFENSE EXHIBIT 46

ORDER OF 6 SEPTEMBER 1941, ENCLOSED IN WAR DIARY OF
MILITARY COMMANDER SERBIA, CONCERNING POLICE DUTY
OF SECURITY SERVICE ON TROOP TRAINS

Commander Serbia

Headquarters Staff/Operations Section [la] No. 106/41

Belgrade, 6 September 1941

It is requested that the subordinate units be given the following
orders :

1. On the trains operating on the Belgrade-Salonika line com-
partments in the front, middle, and last cars are to be reserved
for the Security Service.

2. Men on leave who are equipped with rifles are forbidden to
stow the rifles which have been given to them away in the baggage
car. They must keep them with them ready for use.

For the Commander Serbia

The Chief of Staff
By order :

[Signature illegible]

Major, GSC

PARTIAL TRANSLATION OF DOCUMENT NOKW-1438
PROSECUTION EXHIBIT 419

LETTER FROM COMMANDER IN CHIEF SOUTHEAST, ARMY GROUP F,
II OCTOBER 1943, FORWARDING KEITEL ORDER OF
7 SEPTEMBER 1943, CONCERNING THE APPOINTMENT AND
JURISDICTIONAL RELATIONS OF "HIGHER SS
AND POLICE LEADER" IN GREECE

Commander in Chief Southeast

Headquarters Army Group F

Group Ic/AO Counter Intelligence III
No. 279/43 Secret

[Stamp] Draft
[Stamp] Secret

Local Headquarters, 11 October 1943
[Handwritten] War Diary

* Other parts of this document are reproduced in sections C and V B.

928

Enclosure: 1
Reference: None

Subject: Directive for the Higher SS and Police Leader in

Greece

To: Chief, Field Police

Enclosed please find directive for information and for your
files.

For Commander in Chief Southeast
Army Group F
The Chief of Staff

By order :

[Illegible signature]

Lieutenant Colonel

[Handwritten]

To the files E XIV

[Illegible initial]

The Chief of OKW

[Handwritten]
[Stamp] Secret

to 279/43 Secret
Copy of copy

Fuehrer Headquarters, 7 September 1943

No. 63876/43 Secret, Armed Forces Operations Staff/QM/Adm.

Directive for the Higher SS and Police Leader in Greece

1. By agreement with the Chief of OKW, the Reich Leader SS
and Chief of the German Police appoints a Higher SS and Police
Leader for the area of the Military Commander Greece.

2. The Higher SS and Police Leader is an office of the Reich
Leader SS and Chief of the German Police, which is subordinate
to the Military Commander Greece for the period of its employ-
ment in Greece.

3. In the area of the Military Commander Greece, the Higher
SS and Police Leader embraces all duties which are incumbent
on the Reich Leader SS and Chief of German Police in the Reich.

He has authority to direct and supervise the Greek authorities
and police forces within the sphere of these duties.

4. The primary duty of the Higher SS and Police Leader is the
command of the SS and police units (excluding Waffen SS units
subordinated to Army Group E) in their combat against bands
and sabotage, pursuant to the general directives of Reich Leader
SS. For this purpose, definite combat areas under their own

929

responsibility are to be assigned to them by the military com-
mander.

The military commander regulates command authority and
assignment of forces in the event of combat missions outside the
regularly assigned combat areas.

5. In all affairs concerning police matters and service matters,
the Higher SS and Police Leader is the superior authority of the
SS and police forces employed in Greece.

The military commander is authorized to employ units of the
regular police only if the fulfilment of the tasks set to the
Higher SS and Police Leader by Reich Leader SS permits it.

6. The military commander is authorized to issue directives to
the Higher SS and Police Leader which are necessary to avoid
interference with armed forces operations and duties. They
take precedence over any other directives.

7. The Higher SS and Police Leader will receive policies and
directives for the execution of these duties from the Reich Leader
SS and Chief of German Police. He will carry them out inde-
pendently, currently and opportunely, informing the Military
Commander Greece in as far as he does not receive any restricting
directives from the latter.

The military commander is to be informed in good time con-
cerning reports submitted by the Higher SS and Police Leader
to the Reich Leader SS and Chief of the German Police.

Signed: Keitel

* * * * * * *

930

PARTIAL TRANSLATION OF DOCUMENT NOKW-159
PROSECUTION EXHIBIT 417

EXTRACT FROM ORDER OF MILITARY COMMANDER SOUTHEAST TO
HIGHER SS AND POLICE LEADER 23, OCTOBER 1943,
CONCERNING EXECUTION OF HOSTAGES

Military Commander Southeast
Section Ia/No. 246/43

Headquarters, 23 October 1943
[Handwritten] Supplement 110

To the Higher SS and Police Leader

For the information of : 809th Administrative Area Headquarters ;

German Liaison Staff with the 1st Royal
Bulgarian Occupation Corps

1. As revenge for the surprise attack on the cattle purchasing
detachment at Sljivar (6 km., SW of Zajecar), by a D.M. and a
Communist band, through which 8 German and Bulgarian armed
forces and police members were killed, 8 German and Bulgarian
armed forces members wounded, and 2 German military police
were missing; 100 D.M. reprisal prisoners and 300 Communist
reprisal prisoners are to be shot under consideration of the re-
prisal measures which have already taken place, consisting of
burning down of houses and the losses which the bandits suffered
in this operation.

2. As revenge for the surprise attack on the collecting detach-
ment of the 8th Auxiliary Police Battalion on 6 October 1943 at
Jelasnica by a D.M. band, during the course of which 3 auxiliary
policemen were killed, 8 heavily wounded, and 9 slightly wounded,
100 D.M. reprisal prisoners are to be shot.

The Higher SS and Police Leader is charged with carrying out
the execution. It is to take place in the Zajecar district.

In the publication of the reprisal measures relating to 1 above,
reference is to be made to the horrible treatment of the wounded
who fell into the hands of the bandits and the mutilation of the
corpses; in the proclamation concerning 2 above, it is to be ex-
pressed that the reprisal quota would have been considerably
higher if the wounded had not been decently treated.

* * * * * * *

931

PARTIAL TRANSLATION OF DOCUMENT NOKW-1352
PROSECUTION EXHIBIT 38£

EXTRACTS OF REPORT FROM 2d PANZER ARMY, 14 MARCH 1944,
SiGNED BY DEFENDANT RENDULIC, CONCERNING COOPERATION
WITH SS IN NORTHERN CROATIA

[Stamp] Top Secret

Enclosure for War Diary No. C 167

[Stamp]
[Entry Stamps]

*******
Personal Report to Commanding General

[Illegible initials]

24 copies — 4th copy

2d Panzer Army

Section la No. 800/44 Top Secret

Army Headquarters, 14 March 1944

Reference: 2d Panzer Army la No. 627/44 Top Secret of 1 March
1944

Subject: Chain of command in the North Croatian Sector

1 Enclosure

*******

3. The main task of the command authorities (as per par. 2)
in these areas is to protect the railroad line Zagreb-Belgrade as
well as the main lines (Indija-Neusatz, Vinkovci-Palj-Esseg,
Zagreb-Karlovac, Sunja-Bihac, and Brod Doboj only up to the
area borders) during the course of operation “Cannae”, and to
keep open these vital supply lines. Due to the lack of forces
it will be necessary for this purpose to organize mobile task
troops including all possible aids and to commit these flexibly
and continuously. Beyond this, all military and economically im-
portant objects are to be secured as far as is at all possible and
the command areas to be kept pacified in closest cooperation with
the deputy of the Reich Leader SS for Croatia.

The Representative Reich Leader SS for Croatia will be re-
quested to contact the command authorities and — in close co-
operation with them — to employ all forces at his disposal for rail-
road security and other local security duties.
*******

932

8. Headquarters, 1st Cossack Division and Commander Syrmia
are instructed to cooperate with the Representative Reich Leader
SS for Croatia and the police offices and units subordinated to him
in the command areas as per paragraph 3 * * *.

[Signed] Rendulic

Distribution :

Draft only!

TRANSLATION OF DOCUMENT NOKW-1353
PROSECUTION EXHIBIT 387

ORDER FROM 2d PANZER ARMY TO XV MOUNTAIN CORPS,

17 MARCH 1944, CONCERNING TACTICAL SUBORDINATION
OF SS TO 2d PANZER ARMY

[Handwritten] Highest Priority

[Handwritten] la 482/44 Top Secret

[Stamp] Chief 21 March

la [Illegible initials]

01

Signal Office — XV Mountain Corps M. Fu. d.

Received from 2d Panzer Army, 17 March, 1933 [hours]

17 March 1944
Remarks: Top Secret [Handwritten]
Transmitted: 17 March, 1010 [Hours]

To XV Mountain Corps la.

1. Effective immediately the Representative Reich Leader SS
for Croatia and his subordinate offices and units are tactically
subordinated to the 2d Panzer Army pursuant to the order of the
Commander in Chief Southeast (Headquarters Army Group F).
The police sector leaders subordinate to the Representative Reich
Leader SS for Croatia remain subordinate to him in every respect.
They will be instructed to cooperate directly with the command
authorities of the armed forces and they will be informed that
these command authorities are authorized in emergency cases to
issue tactical orders directly to the police sector leaders. The
Representative Reich Leader SS for Croatia is to be informed
at the same time.

2. The purpose of this subordination is to unite all available
German forces in the Croatian sector for the period of the opera-

933

tion “Cannae” with the aim of making more secure the vital
traffic lines and economic objects for troop movements and supply.

3. To this end the Representative Reich Leader SS for Croatia
is requested to contact and/or instruct the police sector leaders
to contact the command authorities in the Croatian Sector (Corps
Headquarters, LXIX Infantry Corps and Headquarters, 1st Cos-
sack Division, Commander Syrmia, V SS Mountain Corps, and
XV Mountain Corps). By agreement with the command authori-
ties, he is to employ all available forces in the first instance for
the protection of vital railroads at the same time withdrawing
them as far as possible from less vital objects.

4. LXIX Army Corps, Commander Syrmia, V SS Mountain
Corps and XV Mountain Corps on their part will immediately
make contact with the competent police sector leaders for the
purpose of rapid and coordinated regulation of the security meas-
ures. Completion of mission is to be reported.

5. Representative Reich Leader SS for Croatia is to report to
the 2d Panzer Army as soon as possible his forces which are
available for security purposes, as described under paragraph 2
and their planned commitment.

2d Panzer Army la, No. 826/44 Top Secret

[Handwritten] Army headquarters answered

[Illegible initial]
Certified :

[Signed] Schindler

PIxcerpt sent to 375 [?] Division

E. Extract from Testimony of Defendant Rendulic*

*******

EXAMINATION

Presiding Judge Wennerstrum: General Rendulic, you and
the other defendants and your respective counsels have from
time to time made a distinction as to the authority of these vari-
ous groups down there. The SS, the SD, and the Rosenberg
Group, and various other organizations that were in this par-
ticular area in the southeast. What was the respective authority
of first, the army, the Wehrmacht, the SS, and SD, and these
various other organizations ; and who was in charge of the whole
operation and was there any conflict of authority and if there
was a conflict of authority who had the final word?

* Complete testimony is recorded in mimeographed transcript, 28-31 October; 3 November
1947; 22 January 1948 , pp. 6125 - 5472 ; 9504 - 9519 .

934

Defendant Rendulic: May I give you my answer?

Q. I want it purely for information purposes on my own part.

A. From a purely military point of view, the Balkan area was —
as far as the protection of the area was concerned — under Army
Group F and the units under it, such as for instance the 2d
Panzer Army, Army Group E, etc. In other respects, other
agencies had their sphere of authority in that area. For instance,
the Representative for Economy.

Q. Let’s start with the SS.

A. In the SS we must make a distinction between what was
known as the Waffen SS and the police formations. The Waffen
SS was subordinate to military agencies only in tactical respects.
That is to say, they were only subordinate to military agencies
as far as combat tasks were concerned ; they would receive orders
only for the fighting and for preparations for fighting. From
among the units of the SS, there were in the Balkans the 7th SS
Mountain Division, the V SS Mountain Corps and then later on,
the 13th SS Division, and the SS Division “Skanderbeg” in
Albania, which was about to be formed.

These divisions and troops were under the 2d Panzer Army
in purely military respects. They were not subordinate in judi-
cial, disciplinary, and personnel matters, and in all those fields
where they had special assignments which they received from
their highest superior and their highest superior was the Reich
Leader SS. As to the police formations, there were in the Balkans
police regiments and also elements of the SD. These elements
were not under the German troops, but they had their special
assignment; they received from their special superiors their
orders, and the German troops were not in a position to prevent
the carrying out of these orders which these special groups of
the SS had received, or even to forbid them.

Q. How do these references to them come into these orders then?

A. Because it might have been possible — and I believe I gave
an example yesterday — that units of the SD could be asked to
support the troops in carrying out some of their tasks such as
the screening of those parts of the population who were suspected
of being members of bands. For that purpose, the troops did not
have sufficiently trained and versed officials, and for the rest
there is mention of these units now and then because they took
certain liberties and claimed privileges to which they were not
entitled so that they then had to be told where their limits were.

But the picture one should form of this should be the following :
The Balkans and all other areas occupied by German troops were
not territories where the Wehrmacht ruled exclusively, but a
large number of Reich agencies were interested in these terri-

935

tories and equally claimed these territories as their sphere of
influence. They therefore established their offices in these areas
and pursued their intentions. They took the view that they had
as much right to carry out their tasks there as had the Wehr-
macht in carrying out their duties in these territories, and in the
final analysis their orders came from their highest superior. The
peculiarity of these positions can only be explained by the fact
that although there was a dictatorship in Germany and although
Hitler combined all power in his hands, there did not exist one
overall agency which coordinated the activities of all these agen-
cies that worked parallel to each other and that is the reason
why there were so many frictions. The Wehrmacht, however,
achieved one thing in the Balkans. If the situation had become
mortally dangerous from the point of view of safety in the Bal-
kans, for instance an Allied landing, then all available forces
would have been turned over in a tactical respect to Army Group
F. And then the authority of Army Group F would have been
boundless, but it would never have gone so far as to completely
eliminate what the other Reich agencies did. This emergency
never arose.

Q. Well, that gives me a little broader picture of the situation.
It has been somewhat confusing as to the division of authority.
You may proceed.

A. If I may sum up what I have said, the real explanation is
that these were various Reich agencies pursuing the same interests
without the existence of a head to coordinate work, and another
explanation is that colossal jealousies existed between these agen-
cies. All of them insisted on their own competencies.

Dr. Fritsch : General, the last document we discussed was in
volume 16 , but perhaps, I could put one question to you now
which is connected with the problem His Honor has just touched
upon. How could you interfere if you found something amiss
with, say, the SD or any of the other formations mentioned? To
whom would you turn?

Defendant Rendulic : All I could do was write a report which
had to reach the OKW in the end and which would then decide
this matter with whatever highest Reich agency would be involved
as being the superior of the respective agency in the Balkans.

Q. What I understand you to say, Witness, is that you in the
southeast could do nothing. You simply, so to speak, had to go
to Berlin.

A. Yes, there existed no other way out; that is correct. At
the utmost, there would have been the method of violence.
*******

936

V. HOSTAGES, REPRISALS AND COLLECTIVE
MEASURES IN THE BALKANS. MEASURES
AGAINST PARTISANS AND PARTISAN AREAS

A. Introduction

Charges contained in all four counts of the indictment dealt
with hostages, reprisals, and various collective measures in
Greece, Yugoslavia, and Albania. The evidence compiled in this
section on these and related topics has been divided into two
types — contemporaneous documents offered in evidence by either
the prosecution or defense (sec. B), and testimony of defendants
and defense witnesses (sec. C). The defense testimony contains
extracts from the testimony of the defendants List and Foertsch,
the expert defense witness Dr. Ibbeken, and three affidavits by
defense affiants.

The contemporaneous documents include orders by the High
Command of the German armed forces and orders by several of
the defendants, intelligence reports, situation reports, periodic
reports, and war diaries of various German army units.

The issues dealing with partisans and the various groups
resisting the Germans in the Balkans gave rise to questions con-
cerning the qualifications of belligerents. On this subject, the
Annex to the Hague Convention No. IV of 1907, “Regulations
Respecting the Laws and Customs of War on Land,” declares —

“Chapter I. The Qualifications of Belligerents
“Article 1

“The laws, rights, and duties of war apply not only to
armies, but also to militia and volunteer corps fulfilling the
following conditions:

“1. To be commanded by a person responsible for his sub-
ordinates ;

“2. To have a fixed distinctive emblem recognizable at a
distance ;

“3. To carry arms openly ; and

“4. To conduct their operations in accordance with the laws
and customs of war.

“In countries where militia or volunteer corps constitute the
army, or form part of it, they are included under the denomina-
tion ‘army.’

“Article 2

“The inhabitants of a territory which has not been occupied,
who, on the approach of the enemy, spontaneously take up arms

937

to resist the invading troops without having had time to or-
ganize themselves in accordance with Article 1, shall be regarded
as belligerents if they carry arms openly and if they respect the
laws and customs of war.

“Article 3

“The armed forces of the belligerent parties may consist of
combatants and noncombatants. In the case of capture by the
enemy, both have a right to be treated as prisoners of war.”

B. Contemporaneous Documents

PARTIAL TRANSLATION OF DOCUMENT NO-2952
PROSECUTION EXHIBIT 26

EXTRACT FROM SITUATION REPORT U. S. S. R. NO. 37, 29 JULY 1941,
CONCERNING REPRISAL ACTION AGAINST JEWS IN BELGRADE

Berlin, 29 July 1941

The Chief of the Security Police and SD — IV A 1 - B. No. 1 B/41
Top Secret

45 copies — 23d copy
Situation Report U. S. S. R. No. 37
I. Political Review —

*******
Yugoslavia —

The Chief of the Einsatzgruppe of the Security Police and SD
in Belgrade reports —

On 25 July [19] 41 at 1520 hours in Belgrade an unidentified
Jew, wearing the yellow brassard, threw a bottle of gasoline at
a German motor vehicle in an attempt to set fire to the automobile.
He was prevented from doing so and escaped. On the same day
in three more incidents unidentified culprits threw bottles of
gasoline at German motor vehicles. In an identical incident a
16-year-old Serbian girl was arrested. She admitted that she
was incited to the deed by a Jew. In reprisal 100 Jews were
shot to death in Belgrade on 29 July 1941.
*******

938

PARTIAL TRANSLATION OF LIST DOCUMENT 205
LIST DEFENSE EXHIBIT 45

EXTRACTS FROM ACTIVITY REPORTS, 704th INFANTRY DIVISION,

4 APRIL 1941 TO 30 SEPTEMBER 1941

* * * * * * *

4 August 194-1, Valjevo — Rail line Valjevo-Belgrade inter-
rupted through dynamiting of a bridge near Stubline, 20 km.
southwest of Belgrade. All telephone lines along the rail line
disrupted through sawing off of the telephone poles. At 1700
hours on 4 August rail line will be open again.

At 0500 Mionica, 16 km. southeast of Valjevo, attacked by Com-
munist band, 1 Serbian policeman, 1 civilian killed, 1 Serbian
policemen wounded, 12,000 dinars stolen. Two companies of
the 64th Reserve Police Battalion with a small detachment of the
704th Signal Company pursue the band up to Belanovica, 40 km.
southeast of Valjevo, there they are fired upon from a distance
of 1,500 meters ; they attack the band which at once escapes in the
terrain which is obstructed from visibility.

It is suspected that secret communications of the insurgents
are transmitted by motor vehicles which are frequently disguised
as armed forces vehicles. Division orders the control of the
motor vehicle traffic.

❖ * * * * * *

5 August 1941 — It is reported that the Pantic band is planning
an attack on Valjevo during the night from 5 to 6 August or
during the following night. The division orders increased alert-
ness of all security posts.

5 August 1941 — Pantic band detachment of the people’s libera-
tors attempts to take hostages from the population and sends
threatening letters to the police.

Activities by the band of the Jewish physician Dr. Kraus in
and near Pecka.

6 August 1941, Valjevo — Truck from 10th Company of 724th
Regiment is fired upon on its way from Vrbic, 8 km. east of
Krupanj, where two men suspected of being members of a Com-
munist band were arrested; two soldiers suffered injuries on
legs and ankles, one of the arrested Serbs was wounded below
the knee. After the men riding on the truck opened fire the
band immediately fled into the thicket. The soldier with the
leg injury was taken to field hospital 704 in Valjevo; the Serb
who suffered the knee injury was taken to the civilian hospital
where he died shortly thereafter.

* * * * * * *

893964 — 51 — —61

939

7 August 1941 — Disturbances in Bogatic, 20 km. northwest of
Sabac. The district capital and district offices were raided by
Communists, the district governor, his deputy, and one civilian
were shot, wounded persons among the civilian population, prison
opened, Serbian police disarmed, district headquarters Sabac
sends 3 military policemen and 15 Serbian policemen to Bogatic.
LXV Higher [Corps] Command gives orders to the 718th Light
Division to have companies frequently advance in this area for
reasons of safety.

8 August 194-1 — In Belgrade, too, cases of Communist sabotage
and raids are increasing.

It is reported from Ljig, 28 km. southeast of Valjevo, that the
police stations in Babaic and Ljig were raided by Communist
bands, and the policemen disarmed and kidnapped. A woman,
who had previously given a statement about the band, and a
teacher were also kidnapped. Division announces the establish-
ment of a company leadership course and measures to be taken
for the safety of the motor-vehicle convoys.

9 August 1941 — Railroad train moving from Cacak to Belgrade
is attacked at 0100 at the railroad station Latkovic, 28 km. east of
Valjevo, two members of the 724th Light Regiment and one
soldier from Sarajevo killed, one master sergeant from Cacak
escapes with one unharmed member of the 724th Light Regiment.
Two members of the band were injured.

Since infantry is no longer available, in view of the operation
“Baden”, 654th Artillery Regiment with 100 men is to move at
0500 to Lajkovac, from where the raid was first reported and is
to establish the facts and return to Valjevo at 0930. The same
band fired on another train near the railroad station Prnjavor,
directly north of Latkovic.

3d Company of 724th Regiment receives information of a band
in the Ravna Gora area, 54 km. southeast of Valjevo, under the
leadership of a Serbian colonel.

*******

15 August 1941, Valjevo — 0200-0600 hours at Lajkovac rail-
way station, 24 km. northeast of Valjevo, an ammunition train
standing there and a passenger train from Cacak were attacked
by a band 80-100 men strong. Station holds out, 4 soldiers and
1 Serb railroad official dead, 7 injured. Band probably withdraws
to southwest between the Valjevo-Lajkovac and Lajkovac-Cacak
rail lines. Maintenance team 704th Signal Company, which
eliminated disturbances on Valjevo-Belgrade line, is also used
to reinforce the railroad station. Near Slovac, 16 km. northeast
of Valjevo, track damaged by explosion ; repaired in 2 hours from

940

Lajkovac railroad station. 1700 hours Cacak-Belgrade train, 3
km. east of Lajkovac, runs into locomotive and is derailed,
train was fired on, 30 men going on leave were able to fight
their way through to Cacak, 1 injured.

On 15 August 1100 hours, division sends out two platoons of
9th Company 724th Regiment, with 2 field ambulances of field hos-
pital 704, to Lajkovac to protect the railroad station. 2245 hours,
3d Company, 724th Regiment arrives in Lajkovac from Uzice.
Lajkovac is connected with the telephone network of the Division.
Two platoons of 9th Company, 724th Regiment, return again, on
16 August 0800 hours, to Valjevo with ammunition train.

* * * * * * *

18 August 19 41 — A strong band is reported in the Bukova
Forest, 17 km. south of Valjevo.

Twenty meters of railroad track blown up 10 km. east of
Obrenovac.

Truck with army mail and maintenance team 704th Signal
Company is fired upon 7 km. south of Losnica. Escort detach-
ment takes two prisoners.

The red flag is hoisted between Sabac and Losnica, north of
the road as far as the Sava. 2d Battalion 750th Regiment under-
takes thrusts from Mitrovica and Sabac to the especially threat-
ened villages of Lipolist (to which 120 Communists have
withdrawn), Badovinci, Crnobarski, Glogovac. Near Dublje the
railroad station is attacked and a stretch of railroad track torn
up. First Company of 2d Battalion 750th Regiment comes into
conflict with a band there on 19 August [19] 41.

18 August 19 Ul, Valjevo — Telephone lines to Sabac and Losnica
disturbed. Maintenance team 704th Signal Company eliminates
the disturbances. The lines are immediately cut again. Radio
connection with 704th Engineer Company in Koviljaca must be
established.

1st Battalion 724th Regiment with 5 pursuit detachments of 30
soldiers each, 20 Serbian policemen, 20 Arnauts, in addition 1
platoon of 1st Battery 654th Artillery Regiment, surrounds a
band 100 men strong in the Gradina mountains, 11 km. southeast
of Uzice; 38 enemy dead, 10 farmhouses burned down, 15 set
afire by artillery.

Our losses — 1 Arnaut dead. Booty — 5 light machine guns,
12 rifles, 10 hand grenades, 1 pistol, ammunition, 9 tents, 1 horse,
1 typewriter, 1 town stamp of an attacked town, 2 camp news-
papers, camp library with identity cards of personnel, including
photographs, railroad tickets, Communist literature, a large stock
of hard tack. Fifty to sixty men break through chain of Serbian

941

police and escape to the west, 20 Arnauts pursue them, capture
3 light machine guns and pistols; 3 men and 1 woman shot.

18 August 1941, Valjevo — Reports of a band in Vlasic Forest
(15 km. x 5 km. large) 30 km. northwest of Valjevo and in the
village of Bukovica, 15 km. northwest of Valjevo.

18 August 1941, Valjevo — Bands are reported around Loznica,
Zajaca, and Krupanj.

19 August 1941, Valjevo — 0200 hours. For reinforcement of
3d Battalion 738th Regiment, 1 squad is dispatched on motor
cars of the 704th Engineer Company to Krupanj, and 1 squad to
Losnica. Eleventh Company 738th Regiment reinforced by En-
gineer Company of 704th Regiment is by force reconnoitering
the road Loznica Sabac in direction Petrovica and Lipolist during
the night. Action advanced only up to Prinjavac. There, road
blocks and heavy gun fire at around 0400 hours. Village half
burnt down. After main attack by the enemy at 0930 enemy sus-
tained 7 dead. Own losses 11th Company 738th Regiment — 7
wounded, 2 seriously, 1 hopelessly. 1 national flag, 1 Soviet flag
captured. On the way back 11th Company 738th is so strongly
attacked before Losnica that withdrawal must take place over
Badovinci and beyond the Drina towards Koviljaca.

19 August 1941, Valjevo — * * * Railway line Uzice/Cacak closed
because of unexploded bomb on the railway tracks at Rasna, 4
km. south of Pozega. All telephone communications cut. Bomb
will be removed from Uzice.

19 August 1941, Valjevo — * * *

Division received report of a Communist band in Sokolplanina
at Stave, 15 km. west of Valjevo. Through terror the band is
compelling the peasants to join and an attack on Stolica and
Krupanj is planned.

*******

816th Military Administration Headquarters Uzice reports —
According to a report by a peasant from Kapavnik-mountains
east of the Ibar valley, about 1,000 Chetniks with machine guns
and mountain artillery are supposed to be between Raska and
Mitrovica, planning to attack Novi Pazar and Mitrovica during
the next days. Five hundred men are said to have passed during
the last days from the Rogosna mountains, west of the Ibar valley,
to the Kapavnik mountains.

20 August 1941, Valjevo — An army mail truck with escorting
squad shot at between Ub and Obrenovac. Escort returned fire,
no losses. Prior to that, mayor of Valjevo and treasurer were
arrested by the band and 105,000 dinars robbed from the town
treasury. Treasurer set free again. Band writes to post corn-

942

inlander [garrison headquarters] Valjevo that the mayor of
Valjevo is to be exchanged for the mother-in-law of Dr. Pantic,
arrested because of her son-in-law’s Communist activities. Divi-
sion orders post commander [garrison headquarters] to forward
the request to the authority which arrested Pantic’s mother-in-law,
probably the SD Belgrade.

Bands attempt to cut supply line into Valjevo. Bakers of
Valjevo have closed their shops.

In Zovanje, 7 km. southwest of Valjevo, a band is reported.

2230 hours — Attack of a strong enemy reconnaissance troop
on Loznica. 2300 hours quiet again.

Band concentration around Krupanj and Loznica. 704th En-
gineer Company prepares to leave Valjevo on 21 August [19] 41.

Antitank company of the 714th Infantry Division and motor
truck of 704th Signal Company are shot at several times from
cornfields and houses while on their way from Obrenovac to Ub,
on the same spot on which the mail bus was shot at this morning.
The houses from which the shots came are put to fire. Four
dead are recognized on enemy side. Losses — 1 slightly wounded.

Three raiding detachments, 1st Battalion, 734th Regiment (4
officers, 100 enlisted men, plus 92 Albanian soldiers plus 40 Serb-
ian Gendarmes) try to find bands reported in the area of Banja
Basta, 26 km. northwest of Uzice on the Drina. No band found.

Long listance communication Valjevo-Loznica-Krupanj dis-
rupted.

20 August 1941, Valjevo — Mine of Zajaca closed, because — on
account of Communist threats — workers don’t show up for work.
Supply of ore for one more day available, then the plant will
have to be closed also because of lack of coal.

* * * * * * *

21 August 194-1, Valjevo — Decree of the Serbian Minister of
the Interior regarding struggle against Communist bands and
restoration of peace and order.

Division orders again to reexamine the security of quarters.
SF [express — long distance] — trains Belgrade-Salonika are being
made safe by an escort detachment in the strength of one squad
of 734th Infantry Regiment.

*******

22 August 194-1 — 100 bandits are reported 4 km., south of
Osecina in the village of Bojcica, 24 km. west northwest of
Valjevo. Raiding operation of the 1st Battalion, 724th Regiment
(1 officer and 36 enlisted men of the 4th Company of the 724th
Regiment ; 1 officer and 25 enlisted men of 592d Regional Defense
Battalion; 15 Serbs and 40 Albanian gendarmes) towards Arilje,

943

1 2 km. south of Pozega, where bands attacked the village and the
Serbian gendarmery sustained the loss of two dead and 4 wounded.
Because of the break-down of one motor truck, no success. Bands
left one-half hour before raiding detachment arrived in Arilje.
During pursuit 5 km. south of Arilje, machine gun shots are fired
from cornfields. Enemy fled. Pursuit had to be discontinued
because of darkness.

22 August 1941 — One platoon of 3d Battalion, 724th Regiment,
riding in motor trucks to Krupanj-Loznica reports — Loznica firmly
held by Communists.

23 August 1941 — 816th Military Administration Headquarters,
Uzice reports — Band attack on Ivanjica, 236 km. south southwest
of Cacak, and the antimony plant there is imminent. Division
informed 717th Infantry Division.

In Stupnica, 12 km. southeast of Loznica close to westerly road
Valjevo-Loznica, Communists through placards are calling all men
between the ages of 16 and 60 for recruitment and are threaten-
ing reprisals in case of noncompliance.

Call for mass meeting at monastery Korenita, 10 km. southwest
of Loznica on road Stolica-Loznica, where the abbot, teacher,
and innkeeper will speak on 24 August [19] 41 on the subject
“Procurement of More Weapons and Ammunition.”

23 August 1941, Valjevo — In Klinci, 5 km. southwest of Valjevo,
one student arrested for Communist activities.

*******

23 August 1941, Valjevo — LXV Higher [Corps] Command or-
ders to search and surround the village of Grabovac, 14 km. south-
west of Obrenovac, presumably the seat of the Communist central
agency of the Obrenovac district. Operation is named “Geier”.

23 August 1941, Valjevo — Committed — 2 raiding detachments
of 734th Infantry Regiment together with 20 Serbian gendarmes
from Obrenovac, and 2 groups of a police company of 64th Re-
serve Police Battalion, Obrenovac; 1 platoon of 734th Infantry
Regiment, 2 platoons of 7th Company, 750th Infantry Regiment,
Sabac; and *4 a platoon of 3d Police Company, 64th Reserve
Police Battalion, Sabac, and 30 Serbian gendarmes ; 1 raiding de-
tachment of 3d Battalion 724th Regiment, and radio car of 704th
Signal Company, and 3 portable radio sections, 654th Artillery
Regiment, 1 platoon, 2d Battery, 654th Artillery Regiment, Bel-
grade.

Course — Encirclement of the place developed according to plan.
First Battalion, 734th Regiment, was shot at from cornfield; at-
tacked with parts of 3d Battalion, 734th Regiment; surrounding
maneuver unsuccessful since enemy withdrew, presumably because

944

of the very quickly starting fire of the artillery sent forward for
support.

Result — Five men shot during flight. One mimeograph machine
with Communist pamphlets, one bag of rifles captured. Three
houses of not present Communists secured.

One truck with 2 medical soldiers of 704th Field Hospital,
scheduled to transport 4 seriously wounded and 1 dead of 2d
Battalion, 750th Regiment, from operation “Geier” to Sabac,
was forced to return because of a wrecked road bridge. There,
a unit of 7th Company, 750th Regiment, returning from Sabac
also ran into a new fight. Wounded were left in Ub and are
being treated by a Serbian doctor.

23 August 1941 — The truck was shot at again on its way to
Valjevo with the wounded. Return to Ub.
*******

27 August 1941, Valjevo — 11th Company, 724th Regiment, re-
ceives word through middleman that allegedly 25,000 well armed
Chetniks are in the Cer mountains, 20 km. northeast of Loznica.
Their aims are —

1. Struggle against Communism.

2. Struggle against the Ustasha.

3. Prevention of antimony export.

4. Liberation of Serbia.

The middleman wants to arrange for a meeting with the leader
of the Chetniks on a hill 9 km. north of Stolica. Three man
escort is agreed upon for each side.

28 August 1941 [Sic] Valjevo — At the same time LXV Higher
[Corps] Command orders — Bands known to be Chetniks should
not be attacked. Distribution of pamphlets originating from
Chetniks should not be prevented ; communism is to be fought
with the help of the national Chetniks.
*******

27 August 1941, Valjevo — Divci, 5 km. east of Valjevo, attacked
in the evening. Raiding detachment of the 3d Battalion, 724th
Regiment, with 25 Serbian gendarmes states — Serbian gen-
darmerie fled Divci. Band has plundered archives of the town
office. One civilian car shot at, son of a Serbian Nationalist
shot, car burnt, small railway bridge wrecked.

27 August 1941, Valjevo — All long distance telephone com-
munications emanating from Valjevo disrupted, except the one
to Uzice. The occupation of Priboj, Prijepolje, and Novo Varos
by an Italian battalion — reported by Colonel Gialla on 26 August
[19] 41 to the 2d Battalion of 724th Regiment at Visegrad —
supposed to go into effect on 27 August, did not take place.

945

Italians advanced only up to Brodarevo, 18 kni. south of Prijepolje.
Apparently they are pressing forward in the strength of one
regiment against the rebellious Montenegrins there, while at the
same time deploying bombers from the south against the Croatian
units fighting in the north.

* * * * * * *

27 August 19 1+1, Valjevo — On way back from Koviljaca to
Valjevo near Osladic 17 km. northwest of Valjevo, at 1830 hours,
again shot at by 4 machine guns along a track of 2 km. and
attacked with hand grenades.

Own losses — 2 killed, 1 missing, 12 wounded, one of whom
seriously, 1 truck burnt out; enemy losses unknown.

One raiding detachment, 3d Battalion, 724th Regiment, which
had been sent out at 2000 hours from Valjevo to reinforce the
police station Kamenica, 14 km. northwest of Valjevo, which is
threatened by bands, was joined by the escort detachment.

Near Osladic a 10-meter wide road-bridge was blown up,
according to reports from inhabitants.

* $ * * * * *

29 August 191+1, Valjevo — On 29 August 1941, the missing
soldier is brought with a sprained ankle to Valjevo by a peasant.
He had fallen from the back seat of the cycle through a sudden
start, had been captured by the bandits, beaten up, and released
after a day, with the remark that they were out for officers only.

*******

2 September 191+1, Valjevo — Telephone line Valjevo-Uzice in-
terrupted.

0615 hours, 11th Company 724th Regiment Krupanj reports —
1 September, 0700 and 2100 hours. Stolica attacked surprisingly
by rather strong enemy forces. One lieutenant, director of the
plant, captured, another lieutenant probably killed, the platoon
dispersed. One NCO, who was supposed to report on situation
at Stolica Zajaca to Krupanj, wounded at strong road block 2 km.
before Krupanj. 11th Company 724th Regiment tried to re-
assemble dispersed soldiers by way of light signals during the
night of 1-2 September 41.

0625 hours, 11th Company, 724th Regiment, reconnoitres with
patrol in the direction of Stolica.

0815 hours, LXV Higher [Corps] Command communicates that
Croats have committed one battalion Ustasha on the line Kovil-
jaca-Loznica.

0917 hours, Return of reconnaissance patrol to Krupanj with

a group of the held guard Stolica. Advance to Stolica impossible,
as patrol meets with machine-gun fire from the hills 400 meters
before the mine. Twenty men of the field guard still missing,
two of which are certainly dead. Krupanj threatened as well,
because of gatherings on the surrounding hills. No radio contact
with 12th Company, 724th Regiment, which was detailed to
Loznica. 11th Company, 724th Regiment, reports gatherings on
the hills of Krupanj. Companies prepare for defense.

1045 hours, LXV Higher [Corps] Command orders immediate
transportation of a company of 2d Battalion, 724th Regiment,
Visegrad, with loading space which it will have to procure for
itself, to Valjevo. To 2d Battalion, 724th Regiment, via radio.

2 September 19 4,1, Valjevo — Higher [Corps] Command com-
municates —

1305 hours, 3d Battalion, 738th Regiment, fighting near Kovil-
jaca and Loznica, forced to withdraw towards east. Croats are
trying to cross the Drina near Koviljaca and Zvornik, succeeding
only near Zvornik. There, after crossing the Drina, again re-
pulsed.

1555 hours, 11th Company, 724th Regiment, Krupanj, reports —
11 men not yet returned, 2 of them certainly dead. At Stolica
300 kilograms of explosives and 2 machine guns, one of which
was made unusable, fell into the hands of the Communists or the
Chetniks.

2 September 19 U1 — 1630 hours, division inquires at LXV
Higher [Corps] Command, whether 10th and 11th Company,
724th Regiment, may be withdrawn from Krupanj. Commander
Serbia decides that the plant must be held.

1810 hours, LXV Higher [Corps] Command communicates —
reconnaissance by aircraft has shown 50 men are defending
themselves in the castle of Koviljaca and are under fire from
the west. Over Koviljaca the Serbian flag is flying. On the
road Loznica-Koviljaca a motor-ambulance burnt out. The air-
craft was fired upon from the mountains, had to stop reconnoiter-
ing because of engine trouble. 12th Company, 724th Regiment,
probably involved in the fighting near Koviljaca.

1820 hours, LXV Higher [Corps] Command communicates —
According to report from 718th Infantry Division, 3d Battalion,
738th Regiment, likely to be able to hold out at Koviljaca. On 3
September the following are to be committed : Antitank Company
Lazarevac (714th Infantry Division) via Sabac with 2d Battalion,
750th Regiment, [and] 5 companies of Croatian Ustasha. 2d Bat-
talion, 750th Regiment, will get contact with Croatian regimental
staff on 3 September. Koviljaca is free.

1835 hours, division orders on telephonic order by LXV Higher

947

[Corps] Command that Krupanj is to be held under all circum-
stances.

1910 hours, 724th Infantry Regiment reports — Railway line
Visegrad-Uzice blocked up by landslide between Vardiste-Mokra
Gora. Track will be reopened on 3 September, 1200 hours, 5th
Company, 724th Regiment, left on 2 September, 1815 hours;
arrival at the place of the accident 2215 hours; change into train
from opposite direction from Uzice. Arrival Uzice probably 3
September 0200 hours.

2000 hours, Chetniks, who have surrounded Krupanj, demand
surrender, threatening, for the reverse case, slaughtering to the
last man.

* * * * * * *

11 September 1941, Valjevo — 6 wounded transported from
Valjevo to Belgrade by a Junkers 52.*

1025 hours, Staff of the 724th Regiment’s 2d Battalion, the 6th
and 7th Company of the 724th Regiment, marching from Valjevo
to Uzice, are engaged in combat according to air reconnaissance.

* * * * * * *

1700 hours, another 28 wounded are transported to Belgrade by
air. Weapons, rations, mail moved to Valjevo from Belgrade.
* * * Railway line Valjevo — Lajkovac again destroyed over a
stretch of 100 meters in the vicinity of Slovac.

2000 hours, the 3d Antitank Company of the 220th Regiment
reports — railway line Valjevo — Lazarevac-Arandjelovac-Mladeno-
vac open for traffic in the morning of the 12 September, Obrenovac
line destroyed. No coal at Lajkovac for the railroad. The 3d
Antitank Company of the 220th Regiment has dispersed a band
near Stepojevac, but has been unable to destroy them. A band
supposed to be 800 strong is reported on the march from Ocedina,
10 km. northwest of Valjevo.

11 September 19H, Valjevo — The division orders the alarm sta-
tions to be manned and strict check-up of the approaches to the
city on the next morning ; also by cavalry patrols in the neighbor-
hood.

12 September 191^1, Valjevo — Cattle receipts at Valjevo ex-
tremely small. Communist bands prevent delivery of farm
products by the peasants around Valjevo. Four armed civilians
detained on this occasion. Supply of fresh meat has to be se-
cured by requisitioning in the surrounding villages. Food supply
of the civilian population very much endangered.

According to Chetnik reconnaissance the town of Ub completely

* German transport plane.

948

controlled by Communist rabble. Captured Serbian field police-
men and respected citizens are shot dead, looting occurs.

At Banja Basta from 0600 to 1100 skirmish between Com-
munists and Chetniks. German customs officials (22 men) from
Ljubovijca and Banja [Banjina] Basta have made their way
fighting over the Sokolina, north of Kremna, to Uzice. Bridges
between Uzice and Banja [Banjina] Basta blown up. The Chet-
nik commander Prinska remarked at Banja [Banjina] Basta,
showing a German army pistol : “For the rest, we are free Serbs,
and are just waiting for the time when the Germans will have
left for good”.

In the area 10 km. northwest of Uzice bands several hundred
men strong are reported.

12 September 19 41, Valjevo — Serbian field police station Divci
raided by Communists according to a report, policemen captured,
according to another report, forced to go over by the Chetniks.
Chetniks posted guards on the road Valjevo-Lajkovac.

*******

Fourth Company, 724th Regiment, is attacked by Communists
during the night of 12-13 September. Attack against barracks
repelled. On 12 September 4th Company, 724th Regiment, pur-
sues with 2 officers and 37 enlisted men, as well as 10 Serbian
field policemen as far as Arilja, incurring the following losses:
2 killed, 1 wounded. Strength and losses of enemy unknown;
1 bandit shot dead, 1 house burned do\tfn. Communists are in
positions between the 4th Company at Pozega and the fuel depot
Jemenicka Stena, which is 3-5 km. to the east of Pozega and
protected by 1 platoon, and have occupied Pozega railway station.

*******

13 September 194-1 — 0000-0300, Ammunition depot Valjevo is
fired upon from three sides with machine guns (tracer bullets),
submachine guns and rifles. No casualties. Enemy strength and
losses not known.

*******

13 September 1941, Valjevo — Ammunition transports are re-
ported northwest of Valjevo on the road Valjevo-Loznica. At
Stave the staff of the bands apparently coming from Krupanj is
supposed to be located ; those bands are planning an attack against
Valjevo. Agents report as the precise date 14 September 0300
hours. Division orders manning of alert positions; the attack
does not materialize.

2130 hours, 3d Antitank Company, 220th Regiment, Lazarevac,
reports that railway line Lajkovac-Mladenovac was destroyed

949

again by dynamiting at 1700 hours. Two railway engines on
their way from Lajkovac to Mladenovac had to turn back. Repair
work on the track has started.

Commander of the Kolobara Chetnik detachment writes again
to station headquarters Valjevo. There are differences of opinion
between him and the Chetnik commanders of Valjevo.

Arrest of a Communist worker in Belgrade, who is in posses-
sion of a Communist leaflet, by guard of 734th Infantry Regiment.

Raiding operation by 1st Battalion, 724th Regiment (2 officers
and 46 enlisted men of 4th Company, 724th Regiment; 2 officers
and 50 enlisted men of 3d Company of 724th Regiment), to
Arilje. Houses searched and burned down. People escaping
shot at. Army equipment, ammunition, weapons found.

* * * * * * *

15 September 1941, Valjevo — Bands advancing towards Valjevo
from the north, northwest, west, and southeast. Strength un-
known; at Stave supposedly 1,000 men. Artillery shelling ad-
vanced detachments of the Stave band at Kotarci (6 km. west of
Valjevo) with surprise fire during the night.

Raiding detachment 1st Battalion, 724th Regiment (2 officers
and 28 enlisted men of 1st Company, 724th Regiment; 1 officer
and 25 enlisted men of 2d Company, 724th Regiment; 3 officers
and 75 enlisted men of 3d Company, 724th Regiment; 1 officer
and 25 enlisted men of the 529th Regional Defense Battalion for
special missions), goes to Kadinjaca, 4 km. northwest of road
intersection Uzice-Visegrad/Uzice-Dub-Banjina Basta; supporter
of the bands arrested, whereabouts of the bands ascertained; a
farm building in which ammunition was found, burned down.
*******

16 September 19H, Valjevo — 2000 hours, convoy arrives in
Valjevo. Behind the convoy the road is again destroyed. Re-
portedly, a bandit force of approximately 300 men is moving in
on Valjevo.

*******

950

PARTIAL TRANSLATION OF LIST DOCUMENT 202*
LIST DEFENSE EXHIBIT 46

EXTRACTS FROM WAR DIARY OF MILITARY COMMANDER SERBIA,

SEPTEMBER 1941

*******

Commander Serbia

Headquarters Staff la [Operations Section]

No. 113/41 Belgrade, 1 September 1941

In the evening, 31 August 1941, a thick wire tied around a tree
was discovered in Dedinje, Chestnut Avenue, for the fastening
of which there was a hook with a few links of chain on the tree on
the opposite side of the street.

That is to say, it was a so-called automobile trap.

Further automobile traps of this and similar kind are to be
feared. Therefore, cautious driving is necessary, especially dur-
ing night trips, keeping the road under strict observation, in
which connection it is once more reminded that recently foottraps
were repeatedly set by Communists.

Distribution :

A, B, C, D.

For the Commander Serbia
The Chief of the General Staff
By' order :

[Illegible signature]

Major, GSC

Teletype

Appendix 3
[Initial] F

To Armed Forces Commander Southeast (12th Army)

Ic [Intelligence Section]

Consigner

LXV Higher [Corps] Command

Daily Report dated 1 September 194.1
704th Infantry Division

11/724 [2d Battalion of 724th Regiment ] ivill be concentrated
on 1 September 1941 at Visegrad.

714th Infantry Division

1. 9/721 [9th Company of 721st Regiment] will be transferred
on 1 September from Kikinda to the Iron Gate.

* Other parts of this document are reproduced in sections IV C and D.

951

2. Railroad line Cuprija-Senjski-Rudnik blown up at three
points. Railroad ticket offices at Senjski-Rudnik and Ravna Reka,
21 kilometers northeast of Cuprija, robbed, at the same places
the consumers’ cooperative shops were looted.

3. On 31 August, bandits forced inhabitants of the village of
Mirilovac, 6 kilometers southeast of Paracin, to join the guer-
rilla band by threatening them with the death penalty.

717th Infantry Division

1 September 1941, Raiding Detachment 1/749 went into action
in order to seize a meeting of Communists at Milicevci, 8 kilo-
meters north of Cacak.

718th Infantry Division

1. As on 31 August, police platoon was attacked by bands at
Bogatic; 7/750 and a police platoon were set in march from
Sabac, and a raiding platoon from Mitrovica to Bogatic. Both
reached Bogatic without losses, towards 2000 hours.

2. Supply train on the way from Jajce to Banja Luka, fired
upon at road blocks, reached Banja Luka without losses on 31
August at 1700 hours, and returned to Jajce with reinforced escort
on 1 September 1941.

LXV Higher [Corps] Command
la

[Illegible initial]

Appendix 6

To Armed Forces Commander Southeast (12th Army), la

KR 503

* * * * * * *

2. Bands’ activity, 31 August-2 September — raids by bands
against 8 more villages. 2-3 September — 3 attempts at dynamit-
ing railway lines (2 near Cacak, 1 between Zajecar and Paracin).
Furthermore, for the first time, railway line Kraljevo-Skoplje
damaged by dynamiting; 6 injured. Two raids by bands against
the rural police station Boljevac (22 kilometers south of Zajecar)
and Ivanjica. Policemen disarmed. 2 September — at 1530 hours
surprise fire against maintenance party northwest of Kragujevac.
One NCO dead, signal car burnt out. 2-3 September — telephone
lines Uzice-Valjevo, Uzice-Cacak, Uzice-Kraljevo disturbed. 3
September — attempted raid against munition depot at Jafodina
beaten off. 3 September — bridge dynamited between Vlasenica
and Mesarci (30 km. southeast of Sabac). 3 September — attack
with hand grenades against interpreter at Pozarevac. Two seri-
ously injured.

952

3. Special. Bands are trying to seal off the Uzice, Cacak, and
Valjevo areas by planned disruption of our communications and
signal communication channels.

Commander Serbia/Headquarters Staff

Section Ia/F
4 September 1941

* * % sfc * *

Appendix 11

KR 503

To Armed Forces Commander Southeast (12th Army) la
Daily Report

1. Armed force s activity — Fighting near Loznica continues.
Dive-bombers went into action several times. Krupanj appears
lost. Detailed news about troops missing. 3 September in Bel-
grade at the station two people suspected of an attempted attack
arrested by patrol.

2. Bands 9 activity , 4 September — raid by the bands against
supply train of the District Command Semlin near Ralja (25 km.
south of Belgrade). Own losses — 4 wounded. 4 September —
at 2112 hours armed forces transportation train in direction Nis
stopped by strong band, held up by dynamiting of the track.
4-5 September — raids against 3 railway stations on the main line
to Nis (40 km. south of Belgrade). Stations destroyed, tracks
dynamited, train service discontinued. 4-5 September — dynamit-
ing of railway tracks on the lines Belgrade-Sarajevo, Paracin-
Zajecar, Belgrade-Kucevo, Lapovo-Kraljevo. Bands prevent re-
pairs. 3 September — extraction work in the Drpca mines at
Kos. Mitrovica temporarily paralyzed by Communist bands. 4
September, 1300 hours — Sava steamer captured south of Sabac,
the crew kidnapped. 3 September — raid by the bands against
the Miseca mines (5 km. north of Arundelovac) , machinery de-
stroyed. 5 September — telephone lines south of Belgrade inter-
rupted. 3 September — bands raid three more villages.

Commander Serbia/Headquarters Staff, Section la

5 September 1941

* * * * * * *

Appendix 14

KR 503

To Armed Forces Commander Southeast (12th Army)
la [Operations Section]

Daily Report

1. Activity of armed forces , 5 September [19] 41 — Stuka attacks
were able to free parts of units cut off in Krupanj. Our own
losses are not yet known. 5 September — 1 company is guarding

953

the work at the Ripanj tunnel on the Belgrade-Nis line. 6 Sep-
tember — traffic to Nis continues up to now by rerouting through
Mala-Krsna. Line near Markovac free again. 1125 hours, par-
tisan attack on line near Mala-Krsna is now interrupting rail
communications.

Further details on destruction are not yet available, since wires
cut. 6 September, Stuka attack launched on Zlot (30 km. north-
west of Zajecar) . Objective — destruction of Communist prepara-
tions directed against Bor. Report on results follows.

2. Bands, activity, 4 September, 0530 o’clock — rails blown up
on Lapovo-Kraljevo line (5 kilometers south Kragujevac). 4
September — 100 meters of track removed again between Brgule
and Stubline (50 km. southwest of Belgrade). Train traffic to
Sarajevo not possible at present, since the line is destroyed in
many places and almost all the stations are being attacked.

5 September — police in Bacevac disarmed (Bajina-Basta district).

6 September — all telephone lines to Uzice destroyed. 6 Septem-
ber — Sava steamboat on the trip from Mitrovica to Belgrade
forced to turn back near Sabac by rifle fire. Further partisan
attacks on 4 communities. Records burned.

3. Special, 6 September — Belgrade-Agram [Zagreb] line blown
up near Slav. Brod (Croatia). In service again after 10 o’clock.
Belgrade quiet up to now.

Commander in Serbia — Headquarters Staff Ia/F

6 September 1941

*******

Appendix 16

To Armed Forces Commander Southeast (12th Army)
la [Operations Section]

KR 503

Daily Report

*******

3. Bands’ activity, 1-2 September — Lissa antimony mine (40
km. southeast of Uzice) shut down by bands. 1 September — one
Serbian police lieutenant and 15 Serbian policemen in Ivanjica
(40 km. southeast of Uzice) disarmed by bands. 5 September —
Rudnik-Bare mine (north of Cuprije) attacked by Communists.
Operations disturbed. Surprise machine gun fire on Wehrmacht
army trucks near Cacak. Our losses — 7 dead, 2 wounded. 6 Sep-
tember — Wehrmacht patrol in Jagodina (near Cuprija) at-
tacked by Communists. Our losses, 2 dead, 2 wounded. Lubo-
vija occupied by 100 Communists. Sub-prefect [Landrat]
fled. Police and customs guards withdrew before superior

954

strength to Bajina Benta (30 km. west of Uzice) . 7 September —
operations in Vistad plant in Valjevo disturbed by continued
sabotage. Five railway stations on the Uzice-Krusevac and
Paracin-Zaejecar lines attacked by bandits. Traffic installations
destroyed. Partisan attacks on 14 more communities. Records
burned. Telephone installations destroyed. Mladenovac-Cacak
and Jagodina-Kragujevac telephone lines cut in several places.
Disturbances removed.

Commander in Serbia/Headquarters Staff Section Ia/F
* * * * * * *

Appendix 18 b
Copy

Radio Message 8 September 1405 hours

To Commander in Serbia/Headquarters Staff la and Belgrade

1. Systematic character of the insurgent movement in encircle-
ment of vitally essential mines and army billets. Interruption
of means of communication and disturbance of supplies.

2. Attacks on 36 community offices, 13 railway stations, 6 gov-
ernment offices, 3 police stations, 5 customs stations, 400 kilo-
grams explosives with accessories and 800 rounds of ammunition
captured. 13 German soldiers dead.

3. Situation very serious due to lack of troops. Central leader-
ship lacking. Local conditions apparently unknown higher up.

4. Administrative Area Headquarters unable to take special
measures.

816th Administrative Area Headquarters

*

*

* * * * *

Appendix 24

KR 503

To Armed Forces Commander Southeast (12th Army) la

Daily Report

*******

2. Armed forces losses — Period of 1-8 September — dead,
wounded, and missing, 414.

3. Bands 9 activity , 8 September — Passenger ship “Kraly
Maria” fired upon by bandits between Belgrade and Sabac.
Three injured. A tugboat and 1 barge of the waterways adminis-
tration sunk by Communists near Drenovac, and 1 motorboat
captured. Partisan attacks on 2 railway stations on secondary
lines and almost all stations on the Belgrade-Sarajevo line around
Uzice. Eastward rerouting line (Belgrade- Mala-Krsna-Velika-
plana) again blown up at three places. Repairs will presumably

955

893964 - 51 -

-62

take 2 days. 9 September — train collision due to sabotage near
Milosevo (Lapovo-Nis main line). Civilian losses, 6 dead, 25
injured. Will take at least 24 hours to clear up. Partisan at-
tacks on 62 more communities and public offices, 10 police stations.
Part of Serbian policemen disarmed and carried off.

****** *

Appendix 38

For official use only

Belgrade, 13 September 1941

Commander Serbia/Headquarters Staff Section Ia/F

Subject: Instruction of the Central Committee of the Communist
Party of Serbia regarding the operative method of
band warfare

A member of the Central Committee of the Communist Party
of Serbia, arrested by the Security Police, Einsatzgruppe Bel-
grade, had on his person the enclosed — Instructions of the Com-
munist Party of Serbia for band warfare.*

The tactics used up to now by the Communists at their execu-
tion of acts of sabotage and raids of all kinds, also against
personnel of the army, show clearly that they are guided by
these instructions.

The instructions are sent, therefore, by the quickest way to all
command authorities, offices, and military units (down to com-
pany level), with the direction to instruct the troops immediately
and comprehensively about orders and method of fighting of the
Communist bands.

The exact knowledge of Communist tactics and method of
fighting will, doubtlessly, contribute to a successful offensive wav
against the Communist bands.

The LXV Higher [Corps] Command may, for immediate deliv-
ery of the instructions to the troops, request aircraft from the
Commander Serbia, if necessary.

Signed: Danckelmann
Lieutenant General, Air Force
Certified :

[Illegible signature]

Captain, Cavalry

Distribution : All military offices in the area of the Commander
Serbia down to the company level

*

*

* * *

* The enclosure, titled “Partisan War" is reproduced immediately following.

956

Copy of Translation
PARTISAN WAR

1. The lines of communication in the rear area [hinterland]
are very suitable objects for the Guerrilla war. Therefore, or-
ganized bands frequently push into the hinterland of the enemy,
destroy RR tracks, telegraph lines, and bridges, set magazines
afire, raid transports, and harass the enemy in every conceivable
manner.

2. Exact intelligence [service] and the great mobility of the
troops are the best guaranty of success. The enemy is attacked
at his weakest points, selecting those having the least guarding.

3. If the population actively supports the bushwar and the
territory is favorable, the enemy hinterland can be seriously
menaced and the enemy forced to bring up stronger security
forces.

Raids

During raids it is necessary to approach the enemy unnoticed
and to attack him suddenly. Therefore, all movements must be
carefully disguised, even from the population. Highways must
be detoured, nightly shelter is to be taken either in lone houses
or at well hidden places. It is useful, sometimes, to set out in
quite a different direction and to turn towards the true destina-
tion only later. The raids must take place at night if possible.
It is, therefore, necessary to master well the territory and the
position of the enemy. Intelligence [information] in regard to
this must be carried by spies. At favorable places an ambush
may be laid on highways used by the enemy, in order to make a
surprise attack against the enemy driving by.

Destruction of the RR tracks

The destruction of RR tracks is apt to freeze the traffic for a
greater length of time. If no explosives are available the track
is to be broken up shortly before the arrival of a train. The
disturbance of the RR net is to be effected especially near sharp
curves or in the neighborhood of woods. Removal of only one
rail is not sufficient to impair the line, however it may put the
railway temporarily out of commission.

Raiding of transports

1. Above all, the strength and size of the transport, the dis-
tribution of the escorting force, as well as the direction and time
of passage must be found out.

2. The best moment to attack is during the passing of a diffi-

957

cult spot, e.g., at a bridge, in a ravine, and while driving uphill
into a forest.

3. The transports may be raided openly if the strength of the
escort troop offers chances of success. Nevertheless, it is of
advantage to entice the escort troop away from the transport,
in order to then launch a forceful attack against the transport.
If the escort is too strong for a successful raid a surprise
attack is imperative in which the vehicles must be damaged, the
tires cut, and the motor magnetos removed. Here raiding from
ambush is recommended. Smaller detachments, not suitable for
larger scale raids, may specialize in destruction of bridges. If
the transport tries flight, the horses leading the transport must
be killed in order to delay the flight. Raids on strong enemy
columns are not to be undertaken, but after the passage of the
column, single groups or the train may be attacked.

Remarks concerning night fighting

1. At night, the knife plays the principal part. Firearms are
to be used only in order to mislead the enemy. A night raid takes
the enemy by surprise, thereby increasing the chances of suc-
cess. The enemy has no possibility to ascertain the force and
direction of the attack, all of which enables even a numerically
small group to have great success.

2. The night raid is undertaken —

a. After, by day and by night, the position of the enemy and
the points of approach have been well observed.

h. If the hostile forces can be sized up, with their distribution
and equipment.

3. Firearms are outruled on principle, since their effect is
small at night, and shots only serve to give away our position.

4. The greatest possible order and quiet must prevail. Neither
smoking nor any use of light may be permitted. All communica-
tion is by whispering.

5. The knife attack takes place in deployed formation.

6. Ahead of the troop, a patrol with the guide will march. The
storming is done by the combat lines. The reserves remain in
back. Communication to the base, all along the front, is main-
tained by allies.

7. On the defensive, the troop holds together, yet always re-
maining in contact with the enemy.

Instructions for mountain warfare

When executing tasks in mountain regions, spies and well
oriented scouts must be used in greatest possible number. The
best way for a mountain raid is, after surrounding the enemy,

958

to push in his flanks and rear. Mountain walls are the best
position for defense, for they offer view and power of resistance.
Narrow passes must be occupied. Nowhere is the chain system
more advantageous than in mountains, as it precludes counter-
attacks.

The soldiers' tasks

1. The soldier must come to the aid of his comrades, even when
he exposes himself to the greatest danger.

2. He must courageously look ahead, even when his comrade in
front of him is killed, as the man who persists 5 minutes longer
than the enemy will be victorious.

3. If he meets with difficulties, he must only consider how to
overcome them, and not reflect on their magnitude. Nothing is
impossible.

4. No shot must be fired without taking meticulous aim, except
if this is necessary to deceive the enemy. Taking correct aim is the
best protection for one’s self.

5. Those who weaken the morale by failing to obey orders or
by rumor propaganda, who throw away their weapons or ammu-
nition, and who deliberately leave their allotted place will receive
the death penalty.

6. Be considerate toward your own countrymen, do not loot or
steal, but render assistance. The people should see in you the
true fighter for their freedom, and consider you their upright
friend.

1. Security for the terrain.

2. Knowledge of the terrain.

3. The surroundings —

a . Gendarmerie posts.

b. Members of the fifth column.

c. Identification marks.

4. Guards.

5. Food supply administrator, train.

6. Ammunition and arms depot.

7. Troop commanders and political leaders.

8. Meetings —

a. Military.

b. Political.

9. Discipline and distribution of work.

10. Reconnaissance parties for new terrain.

11. Detachments for agitation and propaganda.

12. Detachments for the collecting of food and supplies.

13. Detachments for operational duties.

959

14. Courier.

15. Bases in the surrounding villages.

16. Rest period, retreat, and reveille.

17. Practical militarj^ training.

18. Knowledge and experience gained in action.

19. Medical officer and medic.

20. First aid kit — iodine, dressing material, gauze, alcohol,

chinine, aspirin, vaseline, cotton wool, hydrogen perox-
ide.

21. Rewards for bravery and success.

22. Criticism and self-criticism.

23. Suggestions, remarks, and complaints.

24. Vengeance for fighters killed in action.

25. Naming of partisans.

26. Maps.

27. Tents, rucksacks, knapsacks, water bottle, helmet, various

pieces of apparel, blankets, rope, battery, knuckle ring,
stone, pickaxe, spade, hatchet, nails, horse, bicycle.

28. Literature on partisans.

29. Recruiting of new people.

30. Preserves, peximit, food supplies for 3 days.

31. Lighting material — gasoline, petroleum, wick [Fetzer]

phosphorus, matches.

32. Pass word and watchword.

33. Attitude towards the population — Do not steal or loot,

assist them in their work.

34. Fight cowards and talkative persons.

35. Scouts, spies.

36. How to take charge in any operation.

37. How to save the wounded.

38. Opiates and anesthetics — Various poisons for dogs and

horses.

39. Three-cornered cloth for first aid purposes.

40. Binoculars and compass.

41. Hammer, pair of tongs, wire shears, spanners, watches,

awl, drill, chisel, files, circular saws.

42. Disguises and camouflage.

43. Battle songs and gusla [musical instrument].

Appendix 63 KR 503

To Armed Forces Commander Southeast (12th Army) la
Daily Report
1 .

2 .

3. LXV Higher [Corps] Command ordered to protect the coal

960

mines north of Pozarevac, vital to the city of Belgrade, because
the bands already have interfered with work-willing laborers.
Increased safeguarding of the main railway routes ordered.
German Danube fleet not yet arrived.

4 .

5. Attack on railroad station at Ostruznica (Belgrade-Obreno-
vac) and on three additional railroad stations near Uzice. 16 Sep-
tember — attempted attack on viaduct near Ralja prevented by
German soldiers and Serbian rural policemen. 18 September —
attack on night train prevented near Martinica (8 km. southeast
of Petrovgrad), 10 Communists will be hanged. Attack on rail-
road tunnel near Ks. Mitrovica. One rural policeman killed,
1 wounded. 18 September — due to the blowing up of a bridge
between Jagodina and Jovac, traffic to Nis and Bulgaria inter-
rupted for about 4 days. Train toppled into river and burned.
16 September — all telephone communications from Nis to Skoplje,
and on the routes Uzice-Valjevo, Uzice-Belgrade, Uzice-B. Basta
interrupted.

Traffic interrupted due to acts of sabotage on highways in the
direction Belgrade-Obrenovac, Belgrade-Lazarevac, Jagodina-
Kragujevac, Uzice-Valjevo. Bands prevent repair work from
being accomplished.

6 .

7. During the attacks by bandits on Bajina-Basta enemy cas-
ualties 2 dead, 1 wounded, 8 prisoners. Own casualties — 1 Ser-
bian rural policeman dead. On 16 September — attack on muni-
tion depot at Mrsao (10 kilometers northwest of Kraljevo)
repulsed. Attacks by bands on 10 more rural communities.
Archives burned. Means of communication destroyed.

8. During the last few days repeated attacks by bands on the
mines at Ravna-Reka and Senjski-Rudnik repulsed. Own casual-
ties — 2 dead; enemy casualties — 1 dead, 1 wounded. Bandits
disturb operation. Cessation of operation has to be taken into
consideration.

Certified :

Commander Serbia/Headquarters, Staff la

18 September 1941

[Illegible signature]

Captain, Cavalry

* * $ * * * -'fi

961

Appendix 67

Commander Serbia/Headquarters Staff Section la/F

Belgrade, 18 September 1941
Very urgent

Important Enemy Report

According to a report on hand Chetniks and Communists
intend to avenge their comrades who died in the Cer Mountains,
in Sabac and in Obrenovac. They intend to carry out an attack
on Dedinje, dressed in German officers' and soldiers' uniforms.
The uniforms are those of captured German soldiers. By this
disguise the insurrectionists intend to deceive the German guards
and murder them. The intended time of the plan's execution so
far could not be ascertained.

It is of interest to note that Dedinje was particularly chosen
as target of attack.

For the Commander Serbia
The Chief of Staff
Signed: Gravenhorst
Lieutenant Colonel, GSC

Certified :

[Illegible signature]

Captain, Cavalry

Hs * * * * * ❖

Appendix 92

Commander Serbia/Headquarters Staff Section Ia/F

Belgrade, 25 September 1941

To the Plenipotentiary Commanding General Belgrade

Daily report

1. No change.

2. No change.

3.

4. 23 September — gun battle between Serbian gendarmery and
Communist bands at Beljina (30 km. southeast of Obrenovac).
Enemy losses — 15 dead, 10 wounded.

5. Attacks on railway stations Glibovac (line, Belgrade-Velika
Plana) and Vitkovac north of Kraljevo (line, Lapovo-Kraljevo).
Sidings and installations destroyed. Attack on German Army
train at station Vitkovac repulsed. Communications with Athens
out of order.

Detour via Salonika possible.

Telecommunication lines to Agram [Zagreb] clear again on

962

24 Septembei-, 1400 hours. Sabotage act on telephone poles
between Semlin and Batajnica.

6. No change.

7. Larger band concentrations south of Milanovac-Kucevo en-
danger the cataractline on the Danube. Strong band concentra-
tion in the Rudnik mountains (15 km. northwest of Kragujevac).
Band attacks on three more communities.

There is no more communication with the area around Uzice.
Field Commander Nis [administrative area headquarters] reports
all quiet at 0930 hours in Krusevac. Sixty bandits killed in battle.
Own losses — 23 dead. The insurgent Vojvode is said to have died
in battle.

8. 23 September — band attack on antimony mine in Bujanovac
south of Vranje (in the Albanian settlement area). Dynamite
and money stolen. Bands menace those willing to work. Enemy
losses — 2 dead, several wounded. Bands act in this area exactly
like those in the insurgent area of Serbia.

For the Commander Serbia
The Chief of the General Staff
Signed in draft: Gravenhorst

Lieutenant Colonel, GSC

[Illegible signature]

Captain, Cavalry

*******

Appendix 101

*******

Daily report

1. No change.

2. No change.

3. Order issued — To transfer the 6th Regional Defense Com-
pany of 920th Regiment from Grn. Milanovac (north of Cacak)
to Kragujevac. If necessary, support by one battalion from Cacak
and Stuka unit [squadron].

4.

5. 25 September — through sabotage on track yard near Jago-
dina and between Ripnik and Laniste (5 km. north of Jagodina)
2 derailments, slight damage. 25-26 September — between Brgule
and Stubline (Belgrade-Cacak) track explosion caused by bandits.
Considerable damage. 22-23 September — on line Lapovo-Kragu-
jevac 197 telephone poles sawed off or damaged. Further dam-
ages on telephone communications on the lines Mladenovac-Velika
Plana, Belgrade-Indija as well as at Cacak. 25 September —
through acts of sabotage on road Jagodina-Lapovo and Jagodina-
Varvarin, traffic interrupted.

963

6 .

7. In the area Paracin-Cuprija-Krusevac the insurgents are
systematically carrying out intensified forced recruitings. 25-26
September — 50 insurgents attack the Rumanian border guards
at Jimbola (20 km. east of Gross-Kikinda) with machine guns.
Three Rumanians wounded. Besides the damage reported in
the daily report of 26 September in Mjr. Julia (at Nem. Crnja
20 km. southeast of Gross-Kikinda) , bands have burned 35 wagons
of hemp. A hand grenade was thrown into a Rumanian border
guard house. Band attacks on 5 more communities, 4 attacks on
Serbian country letter carriers. Money stolen. 27 September —
an ethnic German shot at by Communists in Belgrade. Travel
of aliens into Belgrade decreases considerably in consequence of
intensified check. During the last 10 days the commander of
the city has checked at the town border 9,904 persons, 2,346
vehicles, and 2,225 automobiles. 27 September — in the north of
Belgrade a police company and a unit of the Serbian gendarmery
carried out a raid. Result is yet outstanding.

8. 25-26 September — during attack on dynamite depot at
Vinoraca (8 km., southwest of Jagodina) two insurgents are cap-
tured, several wounded.

For the Commander Serbia

The Chief of Staff

Signed in draft: Gravenhorst

Lieutenant Colonel, GSC

Certified :

[Illegible signature]

Captain, Cavalry

TRANSLATION OF DOCUMENT NOKW-084
PROSECUTION EXHIBIT 42

DIRECTIVE OF DEFENDANT LIST, 5 SEPTEMBER 1941, CONCERNING
SUPPRESSION OF SERBIAN PARTISAN MOVEMENT

[Stamp] Top Secret

The Armed Forces Commander Southeast and
the Commander in Chief of the 12th Army

la No. 1857/41, Top Secret

Headquarters, 5 September 1941

6 copies — 6th copy

Subject: Suppression of the Serbian insurrection movement
1. The situation in Serbia does not seem to eliminate the pos -

964

sibility of a spread of the insurrection movement. Increased
attacks on soldiers and armed forces installations by strong, well-
armed bands apparently organized and adroitly led prove that
previous countermeasures are not adequate.

Commander Serbia and LXV [Higher] Corps Command con-
sequently are to make all preparations immediately to enable them
to cope with any aggravation of the situation and to pacify the
country completely before the beginning of the winter .

2. In regard to the above, the following aspects are to be taken
into consideration:

a. If the tension in the situation in Serbia increases, the divi-
sions are to be concentrated at the focal points and at the local
centers of the insurgent regions. (Area Sabac-Valjevo-Krupanj-
Loznica ; area Topola-Kragujevac-Kraljevo-Uzice-Lazarevac ;
and area Bor-Zajecar-Nis-Krusevac.) Villages are to be gar-
risoned not below battalion strength ! Considerations of comfort
and improved billets must be secondary ! The units are to regard
themselves as living under campaign conditions. They will have
to do without permanent billets during this period and make their
billets more like those of mobile warfare. This requires a con-
stantly maneuverable composition and equipment free of any
unnecessary ballast.

b. Surprising, sudden attacks on the centers of insurrection by
surrounding them with superior forces (including artillery) !
The operations are to be commanded by senior, experienced offi-
cers, divisional commanders, according to detailed plans of opera-
tion and after preceding patrolling and reconnaissance. It is
obvious that the weak light infantry commandos assigned up to
now as need arose are no longer sufficient in the present situation.

c. The billeting, which at present is spread over a wide area,
and the desire to protect and to supervise everything simulta-
neously, harbors in it the great peril of being split up. It must
necessarily lead to setbacks which, in the interest of the reputa-
tion of the German armed forces, are not tolerable.

The protection must therefore — when not necessary — be lim-
ited to objects whose preservation is vital. In this category
belong primarily — Belgrade, as the capital (here sufficient mobile
reserves!), the railway Leskovac-Nis-Belgrade direction Zagreb,
the Danube, and the Sava bridges, the Danube break-through
near the Iron Gate, the copper mines of Bor, etc.

d. Active strengthened propaganda in the Serbian language
with all means at our disposal (radio, leaflets, newspapers, pic-
ture posters, etc.) .

e. Increased pressure on the population in areas where in-
surgents are tolerated in order to bring the residents to a point

965

where they will report the appearance of bands to the German
authorities or otherwise cooperate in neutralizing the focal points
of unrest.

/. Ruthless and immediate measures against the insurgents,
against their accomplices and their families. (Hangings, burn-
ing down of villages involved, seizure of more hostages, depor-
tation of relatives, etc., into concentration camps.)

g. Close supervision of the Serbian gendarmerie. Effective
punishment must follow immediately in case of passive behavior,
for instance, permitting oneself to be disarmed without suffering
casualties ! On the other hand it is recommended that the pros-
pect of rewards be held out for courageous behavior and for
corresponding procedure.

h. Increased commitment of confidential agents to find out who
and where the ringleaders, organizers, and focal points of insur-
rection are.

i. Full employment of the influence of the Serbian Government,
which is to be made to accept responsibility and to cooperate
actively.

3. All members of the German armed forces in Serbia are to be
instructed again and again on the situation in Serbia and on
their behavior in case of attacks, etc. These instructions are to
stress that initiative and prompt action must be demanded from
every German soldier. That in no situation may he negotiate
with insurgents, and that he may never surrender.

4. I particularly expect of the unit leaders of all ranks excep-
tional energy and initiative as well as full personal devotion to
the task assigned which at this time consists solely and exclu-
sively of suppressing the Serbian insurrection movement rapidly
and finally.

Incapable leaders are to be relieved without delay and if cir-
cumstances warrant, they are to be called to account !

[Signed] List

Field Marshal

Distribution :

LXV [Higher] Corps Command

Commander Serbia

Commander Salonika-Aegaen

la [Operations]

Id [Training]

War Diary

966

TRANSLATION OF DOCUMENT NOKW-1424
PROSECUTION EXHIBIT 48

REQUEST OF DEFENDANT LIST TO OKW, 13 SEPTEMBER 1941,
FOR UNIFICATION OF COMMAND IN FIGHT AGAINST
SERBIAN PARTISANS

[Handwritten] Oberquartiermeister

Quartiermeister 2 [Illegible initials]

[Initials] M.V.

[Handwritten] 14 September
[Stamp] Top Secret — Priority

5 copies — 4th copy

Teletype

To OKW/Operations Group
same text High Command of the Army
Army General Staff

Threatening development of the over-all situation in Serbia
demands energetic measures. Even the new Serbian Government
does not come up to expectations, according to reports of the
commander in Serbia. The gendarmerie is unreliable on an in-
creasing scale. Association between the insurgents — in my opin-
ion not aptly described as Communists by the commander in
Serbia — and the Chetniks, has been confirmed.

First requisite is a rigid uniform leadership of the offensive
operations which are necessary for the restoration of uncondi-
tional authority. Moreover it is essential that the over-all execu-
tive power, including command over the troops which will be
committed, should be united in one agency. This can only be
that of the supreme troop commander. The present command
regulations are based on peaceful conditions and are unbearable
under the present turbulent combat conditions.

Lieutenant General Boehme is a person to be considered as
especially suited for this position since at the same time he has
an excellent knowledge of conditions in the Balkans. Together
with his staff, he could be made free for this task.

[Stamp] 12th Army

Received 13 September 1941
Oberquartiermeister No. 1163
Top Secret

[Handwritten] Oberquartiermeister/Administration

134/41 Top Secret

967

It is fully understood that the interests of the Four Year Plan
will also be taken into consideration in this case. The main con-
dition for its realization is security and order in the country.

Even after the transfer of the reinforced 125th Infantry Regi-
ment, the German armed forces are in no way sufficient for carry-
ing out the necessary operations in Serbia. The divisions of the
15th stage of mobilization, both as regards personnel and mate-
rial composition, as well as regards leadership, are unsuitable —
according to experiences made up to now — for the destruction of
this revolt, which is universally breaking out. Mobile supply
installations for larger sized operations are also lacking.

I therefore see myself forced, in spite of my appreciation of
the over-all situation, to propose the speedy transport of at least
one powerful front line division with tanks.

Armed Forces Commander Southeast (12th Army)
la No. 1913/41 Top Secret
13th September 1941

Signed : List
Field Marshal

Certified :

[Illegible signature]

Colonel, GSC

After release.

Chief (Teletype)
la
Ic

Ob er quart ierm e is ter
War Diary

968

TRANSLATION OF DOCUMENT NOKW-1492
PROSECUTION EXHIBIT 49

HITLER ORDER, 16 SEPTEMBER 1941, CHARGING DEFENDANTS LIST
AND BOEHME WITH THE TASK OF SUPPRESSING THE INSURGENT
MOVEMENT IN SOUTHEASTERN AREA

[Stamp] Top Secret

[Handwritten] Directives

The Fuehrer and Supreme Commander of the Armed Forces

OKW/Armed Forces Operations Staff/Department

National Defense (I Operations) No. 44 1538/41

Fuehrer Headquarters, 16 September 1941
Top Secret Matter

[Stamp] Top Secret matter, through Officer only

[Illegible handwritten notes]

22 copies — 11th copy
[Initial] W [Warlimont] 17/9

1. I charge the Armed Forces Commander Southeast , Field
Marshal List, with the task of suppressing the insurgent move-
ment in the southeastern area.

The primary task is to secure in the Serbian area the traffic
arteries and objects which are important for the German war
economy, and to reestablish order in the entire area on a long
term basis by the application of the most severe means.

In Croatia (up to the line of demarkation) measures deemed
imperative against the bands are to be taken in agreement with
the Croatian Government through the mediation of the German
general in Zagreb.

2. For the duration of the execution of these tasks all army
forces stationed in the insurgent area, as well as those to be
brought there, are to be concentrated under the order of the
Commanding General of the XVIII Infantry Corps, Lieutenant
General (Infantry) Boehme. The latter will exercise executive
power in the insurgent area itself, pursuant to directives of the
Armed Forces Commander Southeast. Insofar, all military and
civilian offices must follow his instructions. The Armed Forces
Commander Southeast will regulate a more accurate definition of
his authority. The interests of the Four Year Plan are to be
taken into consideration as a matter of principle.

969

3. An infantry division, Panzer platoons* and captured tanks
will be sent by the Commander in Chief of the Army into the
Serbian area in addition to other security forces (these for Cro-
atia also). He prepares for the bringing up — in case of need —
of an additional division as soon as one is released in the east.
I request that the measures be reported in detail to the OKW.

4. As before, the Commander in Chief of the Air Force will
support the operation in the insurgent area with all the forces
available for this purpose. He will designate to the Armed Forces
Commander Southeast a leader for tactical cooperation with Lieu-
tenant General (Infantry) Boehme.

5. It is not permissible to employ forces of the Hungarian,
Rumanian and Bulgarian armies and air forces for these opera-
tions without the approval of the OKW. However, Hungarian
and Rumanian ships which are offered may be employed together
with the Danube fleet for the security of Danube traffic. With a
corresponding commitment of the German flotilla they are to be
assigned such duties as will prevent them having anything to
do with each other.

The use of Croatian troops in the Serbian border areas adjoin-
ing Croatia has been conceded by the Croatian government, and
may therefore take place.

The Italian High Command will be informed of the intended
measures and will be requested to take suitable energetic action
in the territory occupied by the Italians, in agreement with the
Armed Forces Commander Southeast.

6. The Foreign Office will carry out a joint political action of the
Balkan States against the Communist Central Offices in these
countries.

A representative of the Reich will inform the Armed Forces
Commander Southeast regarding the details.

[Initialed] W [Warlimont]
[Initialed] K [Keitel]

[Signed] Adolf Hitler

Distribution :

Armed Forces Commander Southeast, copy 1

Military Commander Serbia, copy 2

German General in Zagreb, copy 3

German Armed Forces Mission in Rumania, copy 4

German General with the Headquarters of
the Italian Armed Forces, copy 5

* The German word “Panzerzuege” conveys two meanings— tank platoons and/or armored
trains.

970

Commander in Chief of the Army
(Oberquartiermeister I), copy 6
(Operations Section), copy 7
Naval High Command (Naval Operations), copy 8
Air Force High Command (Air Force Operations Staff),
copy 9

Chief, Armed Forces Transportation, copy 10
OKW—

Armed Forces Operations Staff, copy 11
Department National Defense, copies 12-17
Armed Forces Signal Communications, copy 18
Armed Forces Propaganda, copy 19
Foreign Counter Intelligence Office, copy 20
Branch Foreign Countries, copy 21
Armament Economy Office, copy 22

PARTIAL TRANSLATION OF DOCUMENT NOKW-258
PROSECUTION EXHIBIT 53

KEITEL ORDER, 16 SEPTEMBER 1941, CONCERNING SUPPRESSION
OF INSURGENTS IN OCCUPIED TERRITORIES

Excerpt!

(No. 888/41 Top Secret)

The Chief of the OKW

WFSt/Department National Defense (IV/Quartiermeister)

No. 002060/41 Top Secret

Fuehrer Headquarters, 16 September [19] 41

Subject: Communist Insurgent Movement in the Occupied Ter-
ritories

40 copies — 2d copy
Section Qu. No. 175/41 Top Secret

1. Since the beginning of the campaign against Soviet Russia
* * * Communist insurgent movements have broken out. The
forms they take have increased from propaganda measures and
attacks against individual members of the armed forces to open
revolt and widespread band warfare. It is established that it is
a question of centrally directed mass movement which also must
be made responsible for minor isolated incidents appearing in
territories quiet up to now. In view of the manifold political
and economic tension in the occupied territories one must also

893964— 51 63

971

assume that Nationalists and other circles will exploit this oppor-
tunity to cause difficulties for the German occupation power by
joining the Communist revolt. In this way an increasing danger
for the German conduct of the war arises, which shows itself
at first in a general insecurity for the occupation units, and which
has also led to the transfer of forces to the main places of unrest.

2. Measures taken up to now to counteract this general Com-
munist insurgent movement have proved themselves to he inade-
quate. The Fuehrer now has ordered that severest means are to
be employed in order to break down this movement in the shortest
time possible. Only in this manner, which has always been
applied successfully in the history of the extension of power of
great peoples, can quiet be restored.

3. The following directives are to be applied here :

a. Each incident of insurrection against the German armed
forces, regardless of individual circumstances, must be assumed
to be of Communist origin.

b. In order to stop these intrigues at their inception, severest
measures are to be applied immediately at the first appearance,
in order to demonstrate the authority of the occupying power,
and in order to prevent further progress. One must keep in
mind that a human life frequently counts for naught in the
affected countries and a deterring effect can only be achieved
by unusual severity. In such a case the death penalty for 50 to
100 Communists must in general be deemed appropriate as
retaliation for the life of a German soldier. The manner of
execution must increase the deterrent effect. The reverse pro-
cedure — to proceed at first with relatively easy punishment and
to be satisfied with the threat of measures of increased severity
as a deterrent — does not correspond with these principles and is
not to be applied.

c.

d. Indigenous forces generally will fail in the execution of
such violent measures. Their reinforcement brings with it in-
creased danger for our own units and consequently must be
avoided. However, premiums and rewards for the population
may be employed to a large extent, in order to insure their
assistance in appropriate form.

e.

4.

Certified true copy :

Signed: Keitel

[Signature illegible]

Captain, GSC

972

TRANSLATION OF DOCUMENT NOKW-458
PROSECUTION EXHIBIT 69

KEITEL ORDER CONCERNING TAKING OF HOSTAGES,

28 SEPTEMBER 1941, AND LETTER OF TRANSMITTAL SIGNED
BY DEFENDANT FOERTSCH, 4 OCTOBER 1941

[Stamp] Top Secret!

Ic/Counterintelligence Officer

No. 1561/41 Top Secret 7 copies— 1st copy

To Section Ic No. 168/41 Top Secret

Copy

Supreme Command of the Armed Forces

Fuehrer Headquarters, 28 September 1941
Armed Forces Operations_Staff/Dept. L. (IV/ Administration)
No. 002204/Top Secret

To Quartiermeister Section No. 183/41

Top Secret

5 copies — 2d copy

Top Secret!

Subject: Taking of hostages

To High Command of the Army/Generalquartiermeister,

Armed Forces Commander Southeast

Because of the attacks on members of the armed forces, which
have taken place lately in the occupied territories, it is pointed
out that it is opportune for the military commanders always to
have at their disposal a number of hostages of the different
political persuasions, i.e. —

1. Nationalists,

2. Democratic middle-class, and

3. Communists.

It is of importance that among these there should be leading
personalities or members of the families of leading personalities.
Their names are to be published.

In case of an attack, hostages of the group corresponding to
that to which the culprit belongs are to be shot.

973

It is requested that commanders be informed accordingly.
The Chief of the High Command of the Armed Forces

Signed: Keitel

Certified true copy:

[Signed] Pfaffmatt
Major, GSC

For information to:
la, O.Qu., Ill, Ic
4 October 41. Ok

[Stamp] Top Secret

Armed Forces Commander Southeast
Section Ic/Counter Intelligence
Officer/No. 1561/41 top secret

Section Ic No. 163/41 Top Secret
Army Headquarters, 4 October 1941

1 Enclosure

7 copies — 1st copy

(Copy)

Quartiermeister Section No. 183/41 Top Secret

[Stamp]

XVIII Corps Commando

Received 8 October 1941 [Illegible initial]

No. 897/41 Top Secret

1 Enclosure

Section Ic

To:

The Plenipotentiary Commanding General in Serbia
Commander of Salonika — Aegean
Commander Southern Greece

[Handwritten] Quartiermeister 2 [illegible initial]

Received 18 October [illegible initial]

Enclosed copy for further action in accordance with the politi-
cal situation prevailing in the area. Please report action taken.

For the Armed Forces Commander Southeast
The Chief of the General Staff

[Signed] Foertsch

4 October 41 Colonel, GSC

974

TRANSLATION OF DOCUMENT NOKW-203
PROSECUTION EXHIBIT 70

ORDER FROM DEFENDANT LIST TO COMMANDING GENERAL SERBIA,
4 OCTOBER 1941, CONCERNING TREATMENT OF MALE POPULATION
IN CLEARING AREAS OF PARTISANS

[Handwritten] Supplement 28, War Diary
Copy

Teletype Office, XVIII Infantry Corps

HMYX/FUE 24 611
Remarks — Priority
Teletype

4 October [1941] 2000 hours German summer time
To Plenipotentiary Commanding General in Serbia

The male population of the territories to be cleared of bandits, is
to be handled according to the following points of view :

1. Men who took part in combat are to be judged by courts
martial.

2. Men in the insurgent territories who were not encountered
in battle, are to be examined, and —

a. If a former participation in combat can be proved of them,
to be judged by courts martial.

b. If they are only suspected of having taken part in combat,
of having offered the bandits support of any sort, or of having
acted against the armed forces in any way, to be held in a special
collecting camp. They are to serve as hostages in the event that
bandits appear, or anything against the armed forces is under-
taken in the territory mopped up or in their home localities,
and in such cases they are to be shot.

c. All other unsuspicious men are to be led under guard into
their home towns. In the most simple form they are to be
obliged to offer the bandits no support of any kind and not to
undertake anything against the armed forces. The mayors of
the individual localities who are to be replaced, circumstances
permitting, must testify as to the local residence of the individual.

Men foreign to the region are to be held in the collecting camps.
The localities are to be searched for weapons first.

3. This regulation is to be made known to all the men named
under 2 above. It is to be explained to them, furthermore, that
the most severe measures of punishment will be used without
further investigation against localities, above all against the male
population of such localities, in which or in the proximity of which
bandits appear, bandits are supported, surprise attacks take place,

975

sabotage acts take place, or anything is undertaken against the
armed forces.

4. It is to be explained to them further, that similar treatment
will be meted out to the male population of localities and to
localities themselves, from which men join the bandits, surprise
attacks and sabotage acts are practiced, or anything is under-
taken against the armed forces.

Signed in draft: List

Field Marshal

Certified true copy:

[Illegible signature]

1st Lieutenant

TRANSLATION OF DOCUMENT NOKW-192
PROSECUTION EXHIBIT 78

ORDER OF COMMANDING GENERAL IN SERBIA, 4 OCTOBER 1941,
DECLARING THAT 2,100 CONCENTRATION CAMP INMATES BE SHOT
FOR THE KILLING OF 21 GERMAN SOLDIERS

The Plenipotentiary Commanding General in Serbia
Quartiermeister Section

[Handwritten] Supplement 24, War Diary

Local Headquarters, 4 October 1941

Supplement 24

Subject: Reprisals for the cruel murder of German soldiers by
Communist bandits

To:

Chief of the Military Administration with the Commander of

Serbia

342d Infantry Division

449th Corps Signal Battalion

Twenty-one soldiers were tortured to death by Communist
bandits in a bestial manner on 2 October in a surprise attack on
units of the signal regiment between Belgrade and Obrenovac. As
reprisal and retaliation, 100 Serbian prisoners are to be shot at once
for each murdered German soldier. The chief of the military admin-
istration is requested to pick out 2,100 inmates in the concentration
camps Sabac in Belgrade (primarily Jews and Communists) and to
fix the place and time as well as burial place. The detachments for
the shooting are to be formed from the 342d Division (for the
Sabac concentration camp) and from the 449th Corps Signal Bat-

976

talion (for the Belgrade concentration camp). They are to be
furnished by the chief of the military administration through
the Plenipotentiary Commanding General of Serbia.

The chief of the military administration is requested to order
the camp leaders to inform the prisoners of the reason for the
shooting.

[Handwritten] Only verbally ordered.

Lieutenant General, Infantry
[Illegible initial]

PARTIAL TRANSLATION OF DOCUMENT NOKW-557
PROSECUTION EXHIBIT 88

ORDER OF COMMANDING GENERAL SERBIA, BOEHME,

10 OCTOBER 1941, DIRECTING THE SHOOTING OF 50 AND 100
PRISONERS OR HOSTAGES FOR EACH GERMAN, OR ETHNIC
GERMAN, SOLDIER WOUNDED OR KILLED

The Plenipotentiary Commanding General in Serbia
Ill/Chief of Military Administration/Quartiermeister
No. 2848/41 Secret

[Handwritten] Supplement 48
War Diary
[Stamp] Secret

Local Headquarters, 10 October [19] 41
Quartiermeister Section No. 470/41 Secret

[Crossed out] Top Secret

Subject: Suppression of Communist insurgent movement

Reference: Supplements of the Plenipotentiary Commanding
General in Serbia to “The Chief of OKW Armed
Forces Operations Staff/Department National De-
fense (IV/Quartiermeister) No. 00 2060/41 Top
Secret of 16 September [19] 41“

1. In Serbia it is necessary, on the basis of the “Balkan men-
tality” and the great expansion of insurgent movements both
Communists and camouflaged as national, to carry out the orders
of the OKW in the most severe form. Speedy and ruthless sup-
pression of the Serbian resistance is a consideration not to be
underestimated for the German final victory.

2. In all garrison towns in Serbia all Communists, male resi-
dents suspicious as such, all Jews, a certain number of nation-

977

alistic and democratically inclined residents are to be arrested
as hostages, by means of sudden actions. It is to be explained to
these hostages and to the population that the hostages will be
shot in case of attacks on Germans or on ethnic Germans. The
LXV [Higher] Corps [Command] and the Chief of the Military
Administration (for Belgrade and Banat) are to report on the
10th, 20th and last of each month (for the first time, on 20 Octo-
ber) the number of hostages.

3. If losses of German soldiers or ethnic Germans occur, the
territorially competent commanders up to the regimental com-
manders are to decree the shooting of arrestees according to the
following quotas:

a. For each killed or murdered German soldier or ethnic Ger-
man, (man, woman, or child) 100 prisoners or hostages;

b . For each wounded German soldier or ethnic German, 50
prisoners or hostages.

The shootings are to be carried out by the troops.

If possible, the execution is to be carried out by the part of the
unit suffering the loss.

In each individual case of losses a statement is to be made in
the daily reports, whether and to what extent the reprisal measure
is carried out or when this will be finished.

4. In the burying of those shot, care is to be taken that no
Serbian shrines arise.

Placing of crosses on the graves, decorations, etc., is to be
prevented. Burials are, accordingly, to be carried out best in
distant localities.

5. The Communists captured by the troops in combat actions
are to be hanged or shot as a matter of principle at the place of
crime [Tatort] as a frightening measure.

6. Localities which have to be taken in combat are to be burned
down, as well as farms from which troops were shot at.

[Signed] BOEHME
Lieutenant General, Infantry

Distribution :

Commander Serbia/Headquarters Staff, 2 copies.

Commander Serbia/Military Administration, 2 copies.
Commander Serbia/for Administrative Area Headquarters,
4 copies.

LXV [Higher] Corps [Command] and Divisions, each 2 x,
10 copies.

342d Infantry Division, 2 copies.

125th Infantry Regiment, 1 copy.

❖

*

*

978

TRANSLATION OF DOCUMENT NOKW-1202
PROSECUTION EXHIBIT 106

GERMAN PROCLAMATION TO SERBIAN POPULATION,
OCTOBER 1941, ANNOUNCING THE 100:1 REPRISAL RATIO

TO THE SERBIAN POPULATION

The German armed forces do not want to take your freedom
and to prevent you from working peacefully. But just like your
Belgrade Government, it demands peace, order, and security in
the country.

Insurgent Communists, Jews, and plunderers have united.
They force you to join their ranks, endanger your property and
life.

Repeatedly, German soldiers have been murdered cruelly.
Also, individual national organizations of your country have
made alliance with these insurgents in order to harm the German
armed forces.

The German armed forces have looked on at this activity for a
long time, to give you time to think it over. Instead of acknowl-
edging gratefully the generous attitude of the German armed
forces you, in many cases, have believed more in the lies and
provocative whispers of Communist and ambitious leaders. So
it happened, that many of you not only did not resist the insurg-
ents but even supported them. Thereby, you have become accom-
plices to the criminal acts of the insurgents.

Lately, raids on vital installations of economy and traffic have
increased, as well as organized attacks on German forces. Here
again many German soldiers were murdered brutally.

The German armed forces must and shall put an end to this
activity with all means and unyielding severity to restore peace
and security — also for you.

The following directives become effective immediately:

1. Anyone who supports the insurgents or their accomplices,
by means of arms and ammunition, by erecting road blocks, by
destroying bridges, by transmitting information, by giving food,
by providing transportation, or by any other manner, will be shot.

2. Anyone who carries fire arms, pointed weapons, hand
grenades, or other weapons, will be shot.

3. Anyone who conceals arms and ammunition will be shot.

4. The communities — in whose areas arms and ammunition are
found, in whose areas road blocks or destroyed bridges are found,
without being prevented or immediately averted by you, in whose
area other hostile acts occur — will be severely punished by the
burning down of houses and shooting of inhabitants.

979

For every killed German soldier, 100 inhabitants will be shot.
Do not permit yourself to be deceived by Communist leaders or
other ambitious leaders. The German armed forces are strong
and victorious. Armies of millions of your alleged friends in
Russia have been destroyed with their entire equipment.

The rest is being destroyed.

St. Petersburg [Leningrad] and Moscow are about to fall.
The German armed forces are also in a position to break all
resistance in Serbia.

Beware of heavy penalties ! Keep peace !

The German Commandant

[Back strip of file containing NOKW-1202]

342d Infantry Division, Operations Section

Supplements 2

War Journal III, Serbia

12 October 1941
31 October 1941

[Stamp] Checked [Illegible Signature]

[Handwritten] 4 March 1942
Current No. 4

[File number] 15.365.8

PARTIAL TRANSLATION OF DOCUMENT NOKW-387
PROSECUTION EXHIBIT 99

REPORT TO COMMANDING GENERAL IN SERBIA, 20 OCTOBER 1941
CONCERNING SEVERE REPRISAL MEASURES

****** He

[Handwritten] Supplement 37
Kragujevac, 20 October 1941

Copy

District Headquarters 1/832
Diary — A./41

To the 610th Administration Area Headquarters Pancevo

And simultaneously for information :

To Commander Serbia, Section la, Belgrade

During the period 14-17 October 1941, the 3d Battalion, 749th
Regiment, stationed in this area carried out an operation at
G. Milanovac, where the 6th Company, 920th Regiment, had been

980

kidnapped. The unit was accompanied by two interpreters, in
German uniform, of the district headquarters who informed me
about details. The unit, marching on the highway, was allegedly
shot at numerous times from the surrounding heights whereby
they sustained losses of 9 dead and 27 wounded (of the latter
one more died later) . The interpreter, who knew the country,
called the attention of the battalion’s commanding officer numer-
ous times to the fact that different tactics were necessary in this
terrain in order to be able to combat the bandits, otherwise he
would have unpreventable losses, without being able to do any-
thing himself. That is what actually happened in the end.
Eighty-seven of the enemy were killed.

The battalion found G. Milanovac rather empty. About 40 male
inhabitants who had concealed themselves, according to informa-
tion of the battalion commanding officer and had waited for the
return of the German armed forces, were arrested and brought
back with them as hostages.

G. Milanovac was completely destroyed; likewise the villages
bordering on the highway on the way back.

After the return from there the battalion of the 749th Regi-
ment received the order to shoot 100 Serbs from Kragujevac for
each soldier killed and 50 [Serbs] for each wounded.

Accordingly, in the late evening hours of 18 October [19] 41,
all male Jews and a number of Communists, altogether about
70 men, were arrested according to lists.

Since this number was not sufficient by far for the 2,300 to be
shot, it was proposed to collect the number lacking through arrests
on the streets, squares, and dwellings in a unified action in the
town of Kragujevac by both the 3d Battalion, 749th Regiment,
and the 1st Battalion, 724th Regiment, stationed in Kragujevac.

Since the planned measure was in contradiction to the orders
of the Plenipotentiary Commanding General — file note 73/41
Secret (Section III) of 9 October 1941 and file note Ill/Chief of
Military Administration/Quartiermeister No. 2842/41 Secret of
10 October 1941, as well as Commander Serbia, Administration
Staff-Diary No. 224/41 of 10 October 1941 — I attempted to
inform the senior garrison officer, Major Koenig, of the execution,
in the sense of the order cited, in that I suggested that the vil-
lages in the vicinity and surroundings of Kragujevac, known to the
district headquarters for a long time as completely strewn with
Communists, be surrounded and the necessary number to be shot
obtained there. He accepted my suggestion voluntarily at once,
and it was proposed that the 1st Battalion of the 724th Regiment
mop up the villages Grosnica and Belosovac on Sunday. On Mon-
day both battalions were to mop up, by a joint action, the vil-

981

lages Meckovac, Marzic, Korman, Botunje, and Dl. and Gor
Komarice in the middle of which the ill-famed Parlog mountain
lies, where the bandits allegedly have their forest quarters.

If then the number of those arrested would not have been suffi-
cient, I suggested the combing through of villages further in-
fested with Communists according to my information. I empha-
size expressly that in the whole time of the existence of the
district headquarters, not a single member of the German armed
forces or ethnic German was wounded or shot in the city.

The citizens of the city, numbering about 42,000, always showed
themselves loyal and inclined toward cooperation with the German
armed forces, whereby it should not be disregarded that a part of
these citizens were always inclined to the bandits; but nothing
happened.

In the evening of 19 October 1941, I was invited to a renewed
conference with Major Koenig, where I learned to my astonish-
ment that the whole plan had been thrown over. On 19 October
1941, the villages Grosnica and Milatovac were mopped up by the
1st Battalion, 724th Regiment, and burned down, and Meckovac
and Marzic by the 3d Battalion, 749th Regiment. At the same
time 422 men were immediately shot on the spot in the villages
without any losses on our side, among them a priest of the Rus-
sian church in whose church tower munition had been found
concealed.

In order to obtain the number of 2,300 lacking, a combing of
the town Kragujevac was ordered again for 20 October 1941.

The arrests on the streets, squares, shops, dwellings, stores, etc.,
took place accordingly today without regard for the persons
involved, taking men between 16 and 60 years of age.

According to a statement of Major Koenig, the following were
to be pulled out from those under arrest in German hands:

a. Those who were in possession of a special pass of the dis-
trict headquarters or another troop unit stationed here.

b. Members of a vital profession or trade (doctors, druggists,
bakers, butchers, grocers, technicians, workers of the light and
water plants, etc.)

c. Those who could prove themselves members of the Ljotic
movement.

In this case, no consideration was taken in any way for the
points stated under paragraph 2 in the order 2848/41 secret.
Furthermore, the last sentence of the second paragraph in the
order, diary 4224/41 (“in order to prevent the annihilation of com-
pletely innocent people * * *”), was observed in no way.

This order of State Counsellor Turner which I brought ex-
pressly to the attention of Major Koenig, the latter did not even wish

982

to read saying* that he had to act exclusively according to the
order of the regimental commander of the 749th Infantry Regi-
ment, which set him the task of bringing together the necessary
number of those to be shot from the men of the town of Kragu-
jevac.

By radio, I urgently requested at 0600 hours, 20 October 1941,
an airplane from the Ic section, Commander of Serbia, in order
to attain through personal conference in Belgrade that the orders
issued would be carried out according to their sense. Unfortu-
nately the airplane was not sent so that an interference of the
superior office is no longer possible because the shootings were
set for 7 o'clock in the morning of 21 October 1941. I should
like to state that the losses of the 3d battalion 749th Regiment
occurred in an operation against the guilty locality G. Milanovac
and not in the city of Kragujevac. If 2,300 bandits and those
sympathizing with them had been captured and shot, the order
issued would have been taken ^care of to a sufficient extent.

According to my viewpoint, the shooting of people from this
city, some of whom are entirely innocent, can have directly harmful
effects. It is to be expected that embittered relatives of those
shot will now practice acts of revenge on members of the German
armed forces.

Sabotage acts on drinking water and on the current temporary
light supply, as well as a large attack of the bandits against the
city, in which the units could suffer more losses than before, are
not out of the realm of possibility. Above all, the psychological
effect will be catastrophic. The residents of Kragujevac have
expected of the German armed forces the elimination of the Com-
munist danger and the aligning into the new framework of
Europe. With the methods used here, we shall certainly not
manage to win back the favorably inclined elements.

Signed : v. Bischofshausen

Captain and Commandant

Captain v. Bischofshausen reported personally in the above
affair —

On 28 October 1941, to the Chief of Staff, Commander Serbia.
On 29 October 1941, at Plenipotentiary Commanding General
in Serbia (through Major Jais).

Certified true copy :

[Illegible Signature]

Captain

983

PARTIAL TRANSLATION OF DOCUMENT NOKW-1379
PROSECUTION EXHIBIT 137

EXTRACT OF INTELLIGENCE REPORT OF 342d INFANTRY DIVISION,

I NOVEMBER 1941, CONCERNING INSIGNIA WORN BY
CHETNIKS AND PARTISANS

342d Inf. Div., G-2 (Open) of 1 November 1941 — Enemy Infor-
mation/Sheet 5

*******

10. The insignia of the various units have not changed . The
Chetniks as a rule wear on their lamb fur caps a Serbian cockade
and, underneath it, a skull and cross bones ; the Communists wear
on their headgear a red star, sometimes below it a narrow strip
of ribbon in Yugoslav colors or the Soviet emblem with hammer
and sickle, or also plain red stripes. Arm bands with the word
“partisan” written on them have been noticed.

Leaders often wear , in addition , tassels in their caps — the
Chetniks gold colored ones , the Communists red ones .

11. Clothes as already known — mostly peasant costumes in all
units; only few in uniforms, almost exclusively among the Chet-
niks; the Chetnik officers often wear over their peasant costume
a Serbian officer's coat with epaulettes.

12. Valid passes in green color which are certified by the German
military offices by means of a stamp are only at the disposal of
a part of the Chetnik group Valjevo. The remaining Chetniks
who are loyal to the government have in their possession passes
issued by Pecanac.

[Handwritten] Probably dating from the period before the split of the Chetnik
units.

*******

984

PARTIAL TRANSLATION OF FOERTSCH DOCUMENT 83
FOERTSCH DEFENSE EXHIBIT 72

EXTRACTS FROM SITUATION REPORT BALKANS, 2 NOVEMBER 1941,
ISSUED BY INTELLIGENCE SECTION, ARMED FORCES
COMMANDER SOUTHEAST

Armed Forces Commander Southeast
Section Ic/Counter Intelligence Officer
No. 7324/41 Secret

Army Headquarters, 2 November 1941
Secret

Situation Report Balkans
Preliminary Remarks

To be used only for the instruction of officers (up to company
commander) , as a basis for a discussion of the political situation ;
public display — for instance on bulletin board — is prohibited.
The paragraphs lined in the margins are only for oral instruction
of the commanders, — written transmission is prohibited.

Serbia

I. State territory (compare attached sketch) — The borders of
today’s Serbia coincide essentially with the language borders. In
the West, however, the Serbian settlement territory still goes
deeply into Croatia. In the Northeast a territory was separated
from the Serbian area to form a “German Protectorate.” On
10 October 1941, the territory of Semlin (west of Belgrade) was
ceded to Croatia. The details of determining the border — espe-
cially in regard to Bulgaria and Montenegro — are still to be
worked out, on the spot, by mixed commissions. Serbia contains
about 3.8 million inhabitants; about the same number lives out-
side the borders.

II. Government — The provisional government of Acimovic,
which was first set up, was unable to operate. The people re-
jected it as a German puppet government. The government of
former General Milan Nedic, which was then formed, worked
independently under German administration. Gen. N. [Nedic]
is known as a convinced Serbian patriot, and an enemy of com-
munism, as energetic, incorruptible, and relentless. As Minister
of War he supported collaboration with Germany. He is credited
with farsightedness and discernment.

N. [Nedic] has known how to surround himself with a number

985

of strong personalities. After some failures in the beginning, the
government seems to be gaining ground with the people; only
the future will show whether it can assert itself against the
extremists, who have always been numerous in Serbia.

III. Serbia is under German military administration. All im-
portant administrative acts (for instance, decrees) must have
the approval of the commander in Serbia.

Internal reconstruction is greatly restricted by the continuous
disorders. In part it has not gotten past the stage of giving
orders. But in spite of everything , a strong desire for recon-
struction can be recognized.

IV. Economy — Important for the German conduct of the war
is —

a. Navigation route on the Danube; especially important are
the rapids between V. Gradiste and Turnus-Severin (Iron Gate),
because it is especially easy to sabotage the river bed and the
system of sluices.

b. The railway line Belgrade-Nis-Salonika as well as the main
road and communication lines.

c. Industrial installations, especially the copper mine Bor in
the northeast; Preussag mines in the northwest, Trepca mines
in the south, as well as numerous individual plants scattered over
the country.

V. Armed forces and police — Since the armistice, Serbia no
longer has any armed forces. In September of this year the Mili-
tary Commander Serbia allowed the Serbian Government to in-
crease the strength of the police force within a certain limit. It
shall be used in agreement with the German army commanders
to fight the insurgents. It has proved its worth after initial
setbacks.

VI. Insurrectionist movement

a. Reasons for the insurrection are —

1. Recovery from the shock effect of the short campaign, which
scarcely touched large parts of the country or did not touch
them at all.

2. Panslav and Communist tendencies.

3. Merger of remaining parts of the Serbian Army.

4. The Serbian refugees expelled from the separated territories
(from Croatia 110,000, from Hungary 37,000, from Bulgaria
20,000) who were transported across the frontier without means
and without sufficient care.

b. Mainsprings of the insurrection are —

1. Remaining parts of the former Yugoslav Army.

2. Communist bands.

3. National units of the Chetniks. The Chetniks are a free

corps organized in a military manner (Cheta-Group, Company),
which has been in existence since the war of liberation against
Turkey and received a legal basis for existence after the World
War through the establishment of a Chetnik organization. The
words with which their secret broadcasting station opens each
broadcast, “It is not Communists who are speaking here hut Na-
tional Chetniks who are ready to fight for the liberation of Serbia
and Yugoslavia” , characterize their political attitude. Strictest
discipline , silence , and absolute dedication of personal efforts are
the basic pillars of this organization. The Vojvode (leader of
the band) is master over the life and death of his people — only
his will governs.

Today part of the Chetniks fight together with German troops
and the Serbian police under the Vojvode Kosta Pecanac against
the Communists.

4. Mixed bands (Chetniks and Communists).

c. Territories in rebellion — Main territories in rebellion at the
present time are (1) around Valjevo and westward past the Cro-
atian border (remainder of the Serbian Army and Chetniks) ;
(2) around Kragujevac (mixed bands), (3) around Bor and
northward up to the Danube (predominantly Communist bands).

The Chetniks of the Vojvode Kosta Pecanac, who participate
in the fight against the Communists, are in the Jastrebac moun-
tains (west of Nis). After beginning with single cases of sabo-
tage, the rebellion now extends almost over the entire Serbian
state. Bands appear in strength up to 1,000 men and possess
light and heavy weapons, and in some cases even artillery. Be-
tween 2 and 11 October 1951, for instance , there were 62 acts
of sabotage and 51 ambush attacks in the Serbian sector. In 3d
cases the sabotage affected traffic installations and in 26 cases
it was directed against lines of communication. Five ambush
attacks were made on members of the German armed forces,
while 46 attacks were directed against Serbs (civilians and
police) .

❖ ^ ❖ ❖

The population of Belgrade is troubled because of the daily
increasing difficulties in food supply, and the hitherto unsolved
problem of fuel supply to Belgrade. Not the insecurity caused
by the insurgents, but the German occupation forces are blamed
for it. There are rumours running that Belgrade itself is block-
aded. An operation of the insurgents against Belgrade is ex-
pected. In this case — it is said — the population will side with the
“just cause”. The events at the east front are eagerly discussed;
an English victory is hoped for.

893964 - 51 - 6 4

987

Croatia

I. State territory (compare the attached sketch) — After the
transfer of the Semlin territory from Serbia to Croatia, per-
formed on 10 October, the frontiers towards Serbia are now
determined in general.

The frontier towards Hungary is still in dispute, since the
Mur Island is kept occupied by the Hungarians. The Mur Island
was Croatian possession up to the beginning of the 18th century
and then again from 1848-1867, and from 1919-1941 it belonged
to Yugoslavia. Ninety-eight percent of its population profess
allegiance to the Croatian ethnic group.

The present frontiers coincide approximately with those of
old Croatia, Slavonia, Bosnia, Hercegovina, and parts of the
coastal regions and of Dalmatia. Considerable parts of the
last mentioned territories were ceded to Italy.

Croatia is divided into a German and an Italian sphere of
interests. The cooperation between Croatians and Italians is
strained.

The population of Croatia amounts today to about five million,
whereof nearly two million are Serbs.

II. Government — State Leader (Poglavnik) of the “indepen-
dent State of Croatia” is Dr. Ante Pavelic. He is assisted by a
council of 12 members (Doglavnici) ; besides by another council
of 7 members (Poglavni-Pobocnici) .

The acceptance of a king from the Italian royal house is not
welcomed by all parts of the people. The Duke of Spoleto is
being considered as king, however is not yet elected.

III. Administration — The administration is but in a state of
organization and is very much handicapped by encroachments of
the Ustasha on the one hand and by revolts of the oppressed
Serbians on the other hand. The German military interests are
safeguarded by the German General in Zagreb, Brigadier Gen-
eral Dr. H. C. von Glaise-Horstenau.

IV. Armed forces — Minister of War and commander of the
Croatian armed forces is Marshal Kvaternik; chief of the Gen-
eral Staff, General of the Air Force Laxa. At present the Cro-
atian Army consists of — 5 division staffs, 46 infantry battalions
activated as regards personnel, and 1 bicycle battalion. The 10
activated artillery battalions are not yet fully equipped. Further-
more, there exists 15 infantry replacement battalions. Three
cavalry battalions are employed for the most part as infantry
units, since there is lack of horses. Three corps staffs, one more
division staff, two signal battalions, and four engineer battalions
are being activated. The arms are for a great deal material

988

captured by the Germans, and only a small part of the army are
trained with them so far.

A Croatian Legion (army, navy and air force units) is attached
to the German armed forces for the fight agatnst bolshevism.

V. Internal political situation

a. The Ustasha — Dr. Pavelic established in Italy the organiza-
tion of the Ustasha (insurgents). In Yugoslavia Eugen Kvater-
nik saw to a further extension and consolidation of this formerly
secret organization.

The goal of the Ustasha was the creation of an independent
Croatian national state by uncompromising fight against the
Serbs.

According to its organization statute the Ustasha consists of —

The political organization — It has the task to educate the mem-
bers, to imbue the minds of the whole nation with the Ustasha
spirit, and to care for the youth.

The Ushtasha militia (para-military organization) — It is re-
sponsible for the pre and post military training, and has also to
do some racial education work.

The Ustasha are fanatical enemies of the Serbs. After Dr.
Pavelic’s accession to power the unbridled attitude of numerous
Ustasha men, especially against the Serbian part of the people,
was very detrimental to the reputation of the movement. The
Ustasha ministry is now doing what is necessary for discipline
and for a strict organization of the Ustasha units. They are
organized into Stuerme (units corresponding to a company) and
are also operating in the insurgent areas under the command of
Croatian army officers. There they proved themselves.

b. The Jewish and Serbian problem — There have always been
strained relations between the Roman Catholic Croatians and the
Greek Orthodox Serbs (Pravoslavs). The young Croatian State
at once issued laws according to the model of the Nuernberg
Laws concerning Jews, to which Jews and Serbs were subject
in like manner. This resulted in most severe persecutions of
Serbs, and at some places degenerated into a religious war against
the Orthodox Church. Serbs were chased by thousands over the
frontiers and thereby robbed of their last property.

c. Insurgent movement — The reasons for the insurrection were
the partly artificially intensified animosity towards the Serbs,
Communist and English agitation, and the disunion within the
Ustasha.

Upholders of the insurrection are undisciplined Ustasha units,
Serbian, and Communist bands. The insurrection is kept alive by
atrocities, committed on both sides, and by foreign agitators.

Fight against the insurrection — In the Italian sphere of inter-

989

est, after its being occupied by numerous Italian divisions, the
situation is generally calm. In the German sphere of interest
Croatian units, partly with German assistance, are fighting the
insurrection centers with varying success. Acts of sabotage
against railroads and means of signal communication increase in
number. In Zvornik (near the Serbian-Croatian frontier) a
German battalion successfully defended itself for weeks against
continuous enemy attacks. A large scale relief operation is
being staged by the Croatians.

Montenegro

Montenegro is an independent kingdom under a King of the
Italian royal house. The King was not yet elected, since here,
as in Croatia, the people reject the Italians.

In the area of the Sandshak Novi Pazar, all over northern
Montenegro as well as near Kolasin, bands with military organi-
zations under the command of Serb General Ljubo Novakovic are
fighting against Italians and Croatians. Southern Montenegro is
calm. The population complied here with the request of the
Italians to deliver up the arms.

Albania

Albania is an Italian Protectorate. The Albanian Government
is experiencing a continuous crisis. The public opinion accuses
Prime Minister Verlaci of a too great deference to Italian de-
mands. The Ministers of Party, of Education, and of the Interior
tendered at the beginning of October their resignations, which,
however, were refused.

By strong troop concentrations and energetic measures the
Italians are masters of the situation. There are isolated islands
of insurrection. Rumors of an imminent national insurrection
are spreading.

Guerrilla bands are gaining ground. Raids and burglaries
frequently occur. Communist pamphlets are distributed. The
police cannot do anything against this.

The population is discontented because the promised autonomy
was not yet granted.

Greece

I. Government — After King George II and his government
escaped from Greece in April 1941, General Tsolakoglou, former
Commander in Chief of the Albania Army, formed a new gov-
ernment. After a reshuffling, made on 20 September 1941 under
pressure of public opinion, its members are —

Tsolakoglou

Logopetopoulos

Papaclopoulos

Gotsamanis

Livieralos

Bakos

Markou

Mutussis

Hatismichalis

Karamanos

Prime Minister.

Vice-President, Minister for National
Welfare, and Minister for Education.
Minister of the Interior and
Minister of Security.

Minister of Finance.

Minister of Justice and Labor.
Minister for National Defense.
Minister without Portfolio.

Minister of Communications and
Minister for the Merchant Marine.
Minister for Economics.

Minister for Agriculture and Food.

This government cannot fully assert itself either. Tensions
within the government are partly based on old class and party
feelings.

Although Tsolakoglou owing to his successful combat engage-
ments in Albania enjoys, to a certain extent, a good reputation
among the population, he nevertheless is generally accused of
nepotism and an all too great deference in all important questions.

II. a. Domestic situation — In spite of the generally prevailing
distressing conditions, large scale acts of sabotage have not
occurred. Numerous British subjects — most of them with Greek
identification papers — could be recaptured. The British officers
and soldiers who are still in hiding have allegedly received the
order recently to remain in the country and join Greek organiza-
tions. Very recently sabotage equipment is said to have been
brought to Athens from abroad in order to carry out acts of sabo-
tage during British air raids, especially on German food depots.

Greek officers and soldiers have fled into Turkey. Turkish
authorities are supposed to back up the departure to Palestine if
the Greek Government in exile requests so. A Greek Legion does
already exist in Egypt.

b. Executive power — As a result of the dismissals, decreed by
the Italians for the constabulary and police, their numbers have
decreased to one third of the prewar strength. The executive
power, as a result of its insufficient numbers, but also due to its
present attitude, can no longer be regarded as an element of
security. It takes a passive attitude towards the various abuses.

c. Economic and food situation

1. The economic life is dominated by the black market, price
rigging, and illicit currency traffic. Organized bands are buying
up food in the country in order to sell it on the “black market”
at fantastic prices. Decrees against these conditions are dis-
regarded. The government attempts in vain to ease the lot of

991

the population through increases in pensions and salaries, settle-
ment of military compensation, maximum price regulations, etc.
All measures, however, are in no proportion to the devaluations
of the currency.

2. The food situation has furthermore deteriorated. The rate
of infants’ mortality is said to have risen from 6 percent to 50
percent as a result of the famine.

In bringing up food the government has to cope with extraor-
dinary transportation difficulties. The steamer “Theophile
Gautier” which, among other items, was carrying German flour
from the Banat to Athens and Piraeus was sunk by the British.

Besides this, owing to the advanced season, the products of the
summer season, especially fruits and vegetables, were gradually
disappearing. The bread ration had to be temporarily reduced
from 60 drams (192 grs.) to 30 drams (96 grs.) since an antici-
pated transport of grain and flour failed to arrive. The present
issue of bread is again 50 drams (160 grs.) daily per head, which
is the result of the arrival of one Italian and two German steamers
laden with grain. Moreover, a steamer under the Turkish flag
of the red half-moon, laden with 1,200 tons of food supplies,
arrived in Piraeus. The Minister for Agriculture and Food,
Karamanos, declared that, for the moment, even the greatest diffi-
culties in the procurement of bread could be regarded as over-
come. In spite of the temporary improvement the over-all situ-
ation with regard to food is as bad as before.

The supply with coal and fuel continues to remain insufficient.
Negotiations between a German coal company and the Croatian
Government were conducted in Agram for the purpose of deliv-
ering 200,000 tons of coal to Greece. The negotiations reached
a deadlock since Greece at the present time is in no position to
deliver the products requested as compensation (resin, sesam-oil,
etc.).

d. Morale — The people bear the acute food situation with in-
difference and apathy.

The political sentiment of certain groups has changed con-
siderably. The Communist propaganda, in view of the enormous
German victories in the East, has lost some of its driving power
although the British propaganda in this matter does not work
without skill. One begins to realize that the German fight against
bolshevism meets the interests of all European nations and hopes
that a just solution will be found for the Greek question in the
framework of the European reorganization. Particular attention
is directed to the tobacco regions of Kavalla and Xanthe which
are occupied by the Bulgarians. The export of tobacco is the
economic backbone of Greece. One hopes that in future settle-

992

ments of territorial questions Germany will take those vital
economic problems into consideration.

* * * * * *

TRANSLATION OF DOCUMENT NOKW-235
PROSECUTION EXHIBIT 140

ORDER OF GENERAL BOEHME, 2 NOVEMBER 1941,
CONCERNING SUPPRESSION OF SERBIAN RESISTANCE

Supplement 113

[Handwritten] War Diary

The Plenipotentiary Commanding General in Serbia
Quartiermeister/Military Administration/Ic
No. 3345/41, Secret

Quartiermeister Section No. 586/41, Secret

Local Headquarters, 2 November 1941
[Stamp] Secret

Subject: Suppression of the Serbian resistance — signs of disso-
lution among the insurgents

1. Under the pressure of the ruthless and successfully carried
out operations of the unit, in consideration of the approach of
winter and on the basis of the destruction of the Russian armed
forces, which is gradually becoming noticeable, the first indica-
tions of signs of dissolution are to be recognized among the
insurgents.

2. These signs were to be expected ; they do not signify by any
means that the opponent will give up his aims. It depends on —

a. Destroying communism in Serbia in such a manner that
flaring up again under more favorable circumstances is impossible.

b. Destroying Serbian chauvinistic circles which now and in
the future refuse close economic and political cooperation with
the Reich.

3. At the same time those parts of the Serbian population must
now be won, which have placed themselves on the side of the
Serbian Government of Nedic, installed by the Reich. (See direc-
tive of the Plenipotentiary Commanding General in Serbia/Ia
No. 33446/41, Secret, of 2 November 1941).

4. The following directives are published for the commitment
of the units and the conduct of the administrative offices:

993

a. As before, all insurgents who were taken in combat , even
if they deserted, are to be shot as partisans. Negotiators who
come from territories in which combat actions take place or will
happen soon, are likewise to be shot.

The arrest and shooting of hostages is regulated by the order
of the Plenipotentiary Commanding General in Serbia/Chief of
Military Administration/Quartiermeister No. 2848/41, Secret, of
10 October 1941 and No. 3208/41 of 25 October 1941.

b . Negotiators who do not offer the capitulation of small or
large groups under the pressure of combat actions taking place
or to take place are to be told that the battle against insurgents
will be continued with unabated severity and only unconditional
capitulation with surrender of all weapons will be accepted.

c. Unconditional surrender is to be carried out as follows : The
insurgents are to lay down their weapons at a place determined
by one of the troop commanders or the administrative area and/or
district commandant and are to be brought together in a reception
camp of the battalion, regiment, or division. They are to be
examined there by the Secret Field Police, SD, and Serbian
auxiliary police. For this purpose, administrative orders in my
mission proceed through the chief of the military administration.

d . The divisions are to report in the daily reports, place of the
reception camps and the number of prisoners.

5. The exploitation of the signs of dissolution lies exclusively
in the hands of the German armed forces (unit and administra-
tive offices). Serbian auxiliary police may not accept offers of
capitulation, but must obtain the decision of the German offices.
The insurgents will, nevertheless, first of all approach the units
of the Serbian auxiliary police with offers of capitulation.
Through getting into close touch with them, it is to be guaranteed
that the initiative will remain unequivocally with the German
offices. It is understood that a crossing over of insurgents into
the Serbian auxiliary police is to be prevented with all possible
means.

Orders of this sort to the Serbian Government are issued
through the Chief of the Military Administration. A copy of the
order of the Prime Minister Nedic to the branches of the Serbian
Government is enclosed as a supplement.

6. The larger number of the insurgents will attempt to strike
through to their home localities unnoticed, in order to conceal
themselves there. Such groups are to be arrested by the units
or by the Serbian auxiliary police, if necessary with force of
arms, and are to be brought into collection camps.

The following is valid for the seizure of insurgents who suc-
ceed in escaping and reaching their home localities:

994

a. The administrative offices have received from the Chief of
the Military Administration an order to prepare exact reports
and submit lists, from which the names of leaders of the bandits,
members thereof, and all persons absent from the localities or
returning there may be obtained. They are to note in addition
the localities which have offered the bandits assistance.

b. In addition, frequent surprise raids are to be carried out by
the unit in collaboration with the administrative offices. Because
of their knowledge of the locality and population, it will often
be practical to use the Serbian auxiliary police.

7. In doubtful cases — above all, when it is uncertain whether
individual groups are to be regarded as “insurgents” or not — the
decision of the Plenipotentiary Commanding General in Serbia
is to be obtained.

[Signed] Boehme
Lieutenant General, Infantry

Distribution :

Down to battalion and district headquarters

[Stamp] Secret

TRANSLATION OF DOCUMENT NOKW-905
PROSECUTION EXHIBIT 143*

REPORT FROM 734TH INFANTRY REGIMENT TO 704TH INFANTRY
DIVISION, 4 NOVEMBER 1941, ENCLOSING REPORT OF THE
SHOOTING OF JEWS AND GYPSIES

[Stamp] Secret

734th Infantry Regiment
Diary No. 437/41 Secret la

[Stamp]

704th Infantry Division
Received 10 November 1941
Branch la 598/41 Secret -1-

To 704th Infantry Division
Subject: Reprisal measures
1 Enclosure

For information, the regiment encloses the report of First

4 November 1941

704th Infantry Division IVa
Received 8 November 1941 IVb

IVc

Diary No. IVd

C.O. Ha lib la lb Ic III

[Handwritten]

Diary 1351/41 Secret 470a
[Illegible initials]
la

* Photographic reproduction of this document, including enclosure thereto, is reproduced in
Section VIII.

995

Lieutenant Walther, 9th Company, 433d Infantry Regiment, con-
cerning the shooting of Jews and gypsies on 27 and 30 October
1941.

[Illegible signature]

[Stamp] Secret

1st Lt. Walther

C. 0. 9th Company, 433d Infantry Regiment

Local Headquarters, 1 November 1941

Report concerning the shooting to death of Jews and gypsies

By agreement with the SS office, I picked up the selected Jews
and gypsies from the prisoner camp Belgrade. The trucks of
599th Administrative Area Headquarters available to me for this
purpose were impracticable for two reasons :

1. They have civilian drivers. Hence, secrecy is not assured.

2. All of them were without cover or tarpaulins so that the
population of the city saw whom we had put in the vehicles and
where we went. Wives of the Jews had assembled in front of
the camp; they cried and screamed when we drove off.

The location where the shooting to death was carried out is
very favorable. It is situated north of Pancevo immediately on
the road of Pancevo-Jabuka where there is a grade high enough
to make it difficult to climb. Opposite this grade is swamp ter-
rain; behind it a river. When the water is high, as on 29 Octo-
ber, it almost comes up to the grade. Thus, an escape of the
prisoners can be prevented with few troops. The sandy ground
also is favorable which facilitates digging of the ditches and
consequently shortens the time of labor.

After arrival, approximately 1*4 to 2 kilometers before the
selected site, the prisoners got off, marched to the selected site,
while the trucks with their civilian drivers were sent back imme-
diately in order to afford them as little grounds for suspicion as
possible. Then, I had the road blocked for all traffic for reasons
of security and secrecy.

Place of execution was secured by three light machine guns and
twelve riflemen — (1) against attempts to escape by the prisoners,
and (2) to protect ourselves against possible attacks by Serbian
bands.

The largest part of the time was consumed by the digging of
the ditches, while the actual execution by shooting (100 men in
40 minutes) went very rapidly.

Luggage and valuables had been collected previously and taken
along in my truck in order to turn them over later to the National
Socialist Peoples’ Welfare.

9 %

The shooting to death of Jews is simpler than that of gypsies.
It must be admitted that the Jews accept death very calmly, they
stand very quietly, while the gypsies cry, scream, and move con-
tinuously when they are already on the spot where they are to
be shot to death. Some of them even jumped into the ditch before
the firing and attempted to feign death.

In the beginning, my soldiers were not impressed. The second
day, however, it had become noticeable that one or the other did
not have the nerve to carry out shooting to death for a longer
period of time. My personal impression is that one does not
develop any psychological inhibitions during the shooting to
death. However, these appear if one contemplates it quietly in
the evening, after a few days.

[Signed] Walther

First Lieutenant

Appendix I

Map showing location of burial place of Jews and gypsies shot
by 9th Company, 433d Infantry Regiment, between 27 and 30
October 1941, near Belgrade on the road between the towns of
Pancevo and Jabuka. [Attached to original, not reproduced here]

PARTIAL TRANSLATION OF DOCUMENT NOKW-1052
PROSECUTION EXHIBIT 146

ACTIVITY REPORTS OF 342d INFANTRY DIVISION TO
PLENIPOTENTIARY COMMANDING GENERAL IN SERBIA,
30 OCTOBER AND 18 NOVEMBER 1941,
CONCERNING REPRISAL MEASURES

342d Infantry Division
la Section (open)

Subject: Reprisal measures

Reference : Today’s daily report

Division Command Post, 30 October [19] 41
[Handwritten] Addendum to 15 November
To The Plenipotentiary Commanding General in Serbia

997

According to daily report of 15 October 1,900 shot to death

For 15 to 29 October 1941 :

10 dead 1,000

39 wounded 1,950

[Total] R850

Executions by shooting to date 1,600

Remaining 3,250

Division requests further instructions, as no prisoners are
available at present.

For the Division Headquarters

The First General Staff Officer

Signature
Major, GSC

Addendum :

Losses during the period from 31 October to 15 November

1941—

1 dead 100 to be shot

5 wounded . _ . 250

[Total] “350

Enemy losses —

73 dead

129 shot to death

202 — [minus] 350 148

Balance carried fonvard ... 3,250

Losses, for which reprisals have not yet

been taken 3,398

Infantry Division

Divisional Command Post, 18 November 1941

Report according to status on 15 November inclusive of shoot-
ings, arrests of hostages, and reprisal measures, during the period

from 21 September to 15 November 1941.

dead wounded

1. Own losses —

a. During the period covered by the report _ 32 127

5 . Losses before the period reported on, for

which reprisals have not been taken __

[Total] 32 127

2. During the period covered by report there were shot to
death —

a. Insurgents during combat actions 905

5. Hostages as reprisal 2,685

Including paragraph 55 3,590

998

3. Therefore, total for which reprisals not yet taken — 5960.
Remark : Further shootings not carried out, as hostages were

sent to concentration camps.

4. Number of hostages:

a. At the beginning of report period _ _ —

b. Arrested during the report period ... 22,175

c. Of these, shot to death or sent to concentration camps 21,875

d. Therefore, still remaining 300

5. During the period covered by report there were further shot
to death —

a. As reprisal for losses of troop units not belonging to

the Division

b. By special orders (Corps Order of 7 November 1941) _ 129

Divisional Command Post, 18 November 1941

Enemy losses from 24 September to 15 November 1941

Killed in
Combat

Shot to
Death

Arrested

Report of 9 October

88

1,127

17,420

10-day report of 20 October

546

1,081

4,295

10-day report of 31 October

200

100

110

10-day report of 10 November

53

248

45

Daily report of 11 November.

129

Daily report of 13 November

18

5

[Totals]

905

2,685

21,875

TRANSLATION OF DOCUMENT NOKW-945
PROSECUTION EXHIBIT 174*

DRAFT OF TELETYPE FROM ARMED FORCES COMMANDER SOUTHEAST
TO COMMANDING GENERAL SERBIA, 6 FEBRUARY 1942, REQUESTING
REPORTS ON ALL REPRISAL MEASURES

[Stamp] Secret

[Handwritten] War Diary SSD
59

[Stamp] Draft
Teletype

To Plenipotentiary Commanding General in Serbia

1. All subordinate units, including the Bulgarians, are to be
instructed that all forthcoming reprisal measures and/or counter-
measures are to be included in reports regarding sabotage attacks,
etc.

* Photographic reproduction of this document appears on p. 1137.

999

2. The treatment of prisoners in the course of operations re-
quires application of a more severe criterion. Prisoners taken
in combat can not be innocent. People who loiter in the combat
terrain and are not in their residence will be mostly considered
as having participated in combat and consequently must accord-
ingly be shot to death.* The lenient attitude of the troops in view
of the same attitude during the past summer and consequences
I'esulting therefrom, is to be combatted most vigorously!

[Initial] K [Kuntze] 6 February

Lieutenant General (Engineers)

Armed Forces Commander Southeast (12th Army)

la No. 431/42, Secret
6 February 1942 1600 hours

After release:
la
Id
01
Ic

War Diary

TRANSLATION OF KUNTZE DOCUMENT 64
KUNTZE DEFENSE EXHIBIT 7

EXTRACTS OF REPORT TO ARMED FORCES COMMANDER SOUTH-
EAST FROM WAR DIARY OF PLENIPOTENTIARY COMMANDING
GENERAL SERBIA, MARCH 1942, CONCERNING COURT MARTIAL
INVESTIGATIONS AND CARE FOR PRISONERS OF WAR

The Plenipotentiary Commanding General in Serbia
Section la No. 1367/42, Secret

[Handwritten] Appendix 2
Belgrade, 1 March 1942
[Stamp] Secret

Subject: Ten-day report

2 Enclosures (only to Armed Forces Commander Southeast)

To The Armed Forces Commander Southeast

I. Enemy situation

1. Serbian area

*******

* Words in italic represent handwritten corrections made on original document.

1000

8. Acts of sabotage and surprise attacks have decreased in
numbers as compared with the previous report period, however,
they extended over the entire eastern area of Croatia and Serbia.
The total number of the reported incidents amounts to 45.

4- General — The interior political tensions in Serbia have be-
come more acute. The formation of new bands and increased
activities by those which already have been reported, as well as
increased Communist propaganda, make a new revolt early in
the war increasingly likely.

*******
II. Own and subordinated troops
*******

The 714th Infantry Division inflicted heavy casualties upon the
enemy in numerous skirmishes and, during a search, arrested
a number of suspected persons who were detained for court
martial investigation.

*******

IV. Supply

*******

Five hundred and ninety-four seriously injured and sick
Serbian prisoners of war arrived in Belgrade from Germany.
They were assigned to the military hospitals in Belgrade and
Kragujevac for further medical care by Serbian medical per-
sonnel.

V. Losses (period from 16 to 25 February 194.2)

Own losses —

Germans 25 killed 61 wounded — 13 missing.

Croatians 42 killed 92 wounded — 15 missing.

Bulgarians 17 killed 24 wounded.

Total 84 killed 177 wounded — 28 missing.

Enemy losses —

Losses inflicted by German troops 858 killed, 73 arrested.
Losses inflicted by Croatian troops 73 killed, 8 arrested.
Losses inflicted by Bulgarian troops 764 killed.

Total losses of the enemy 1,696 killed, 81 arrested.
*******

VI. Administration

*******

The Serbian Government, with the approval of the adminis-
trative staff, arranges for meetings in which the population is

1001

informed about the situation by prominent persons, warned not to
commit any rash acts, and an attempt is made to win their loyal
cooperation.

For the Plenipotentiary Commanding General in
Serbia

The Chief of the General Staff

[Illegible initials]

[Signed] Kewisch

Colonel, GSC

TRANSLATION OF KUNTZE DOCUMENT 65
KUNTZE DEFENSE EXHIBIT 10

EXTRACTS FROM REPORTS OF COMMANDING GENERAL SERBIA TO
ARMED FORCES COMMANDER SOUTHEAST, 10, 20, AND 31 MARCH
1942, CONCERNING PLANS FOR REVOLT, SABOTAGE, AND
RECRUITING ACTIVITIES OF PARTISANS

Copy

Enclosure 26

[Handwritten] War Diary
Commanding General and Commander in Serbia
Operations Section No. 1610/42 Secret

Belgrade, 10 March 42

Subject: Ten-day report

2 Enclosures (only to Armed Forces Commander Southeast)

[Stamp] Secret
To Armed Forces Commander Southeast

I. Enemy situation

1. Serbian area — An operation plan of the Communist party
was found in Belgrade with directions for the revolt early in
the year, which presumably is to begin in the middle of March.
The revolt is to be introduced by acts of sabotage on oil transports
on the Danube and blowing up the Sava railroad bridge.

* * * * * * ifc

3. General — In comparison with the period of the previous
report, the recruiting activity of the Communists and Nationalists

1002

has increased throughout the entire country. Energetic propa-
ganda is being made for the annexation of eastern Bosnia to
Serbia * * *.

4. Acts of sabotage and attacks — The number of acts of sabo-
tage and attacks has not changed substantially in comparison
with the period of the preceding report. A total of 43 cases
was reported.

4: 4c 4: 4s 4: 4: 4?

III . Serbian armed battalions [ Abteilungen ]

4: 4: 4= sfc sfc sH 4=

In the course of the reorganization of the Serbian police,
approval has been granted to renaming it “Serbian State Guard,”
with the subformations “Serbian Military Guard,” “Serbian
Municipal Guard,” and “Serbian Border Guard.” Planned and
present strengths of the Serbian State Guard are seen in the
following survey:

Planned 580 officers — 14,420 men Total 15,000

Present 635 officers 12,470 men Total 13,105

Besides that, the strength of the Belgrade Municipal Guard
amounts to —

48 officers 1,223 men Total 1,271

4* ♦ 4= 4s * 4= 4=

V. Losses (26 February-5 March [IP] U2)

Ours — Germans 13 dead 16 wounded

Croats 14 dead 92 wounded

Bulgarians 4 wounded

Ethnic Germans and
Serbian Auxiliary

Police 4 dead 1 wounded

31 dead 113 wounded

Enemy — By German troops and

Serbian Auxiliary

Police 884 dead 231 arrested

By Croatian troops 97 dead.

By Bulgarian troops 136 dead 223 arrested

1,117 dead 454 arrested

* 4? * * * 4s *

[Illegible initials]

[Signed] Bader
Lieutenant General, Artillery

893964—61

15

1003

Copy

Enclosure 55

[Handwritten] War Diary
Commanding General and Commander in Serbia
Operations Section No. 1872/42 Secret

Belgrade, 20 March 1942

Subject: Ten-day report
2 enclosures

[Stamp] Secret
To Armed Forces Commander Southeast

I. Enemy situation

* * * * * * *

3. General — Parts of proletarian brigades have pushed for-
ward out of Montenegro across the demarkation line into the east
Bosnian area; the advance of other Montenegrin bands across
the demarkation line into the Serbian area can be counted on.

Tn general a certain calm has descended on Serbia; in Croatia,
on the other hand, further increasing activity of the insurgents
is to be noted.

U. Sabotage and attacks — The number of 36 acts of sabotage
and attacks keeps within the same limits as in the period of the
preceding report.

* $ * * * * * I

V. Losses (6 March-15 March)

Ours — Germans 1 dead 1 wounded

Croats 24 dead 28 wounded 10 missing

Bulgarians None

25 dead 29 wounded 10 missing

Enemy — According to German reports, 377 dead, 131 arrested
According to Serbian reports, 543 dead, 125 arrested
According to Croatian reports, 218 dead, 61 arrested

As a result of joint fighting these figures may in part overlap.
*******

[Illegible initials]

[Signed] Bader
Lieutenant General, Artillery

1004

Copy

[Handwritten] Enclosure 79 War Diary
Commanding General and Commander in Serbia

Operations Section No. 2279/42 Secret

Headquarters, 31 March 1942

[Stamp] Secret

Subject: Ten-day report

2 enclosures (only to Armed Forces Commander Southeast)

To Armed Forces Commander Southeast

I. Enemy Situation

1. General — Generally quiet in Serbian area. Communist ten-
dencies seem to be constantly gaining more ground in the entire
Croatian area.

*

*

*

*

*

*

*

The number of 49 acts of sabotage and attacks constitutes an
increase in comparison with the period of the preceding report.

* * * * * * *
V. Losses (16-25 March)

Ours — Germans 1 dead 3 wounded 1 missing

Croats 40 dead 68 wounded 98 missing

Enemy — 504 dead 84 wounded 256 arrested

* * *

[Illegible initials]

*

*

*

*

[Signed] Bader
Lieutenant General, Artillery

1005

TRANSLATION OF DOCUMENT NOKW-946
PROSECUTION EXHIBIT 189

ORDER OF HEADQUARTERS ARMED FORCES COMMANDER
SOUTHEAST, 27 MARCH 1942, CONCERNING DESIGNATION
OF PARTISANS AND CHETNIKS

Headquarters, 27 March 1942
[Handwritten] 131

Armed Forces Commander Southeast (12th Army)
la No. 388/42

Subject: Designation “Chetniks”

The designation “Chetniks,” often used in reports, has fre-
quently caused misunderstandings; it should, therefore, be used
no more.

Enemy groups are to be called “insurgents,” “rebels,” or
“bands,” or other unequivocal designations, for instance, the term
used by the enemy “insurgents of the 2d Mounted Montenegrin
Proletarian Brigade” and so forth. The fighters on the German
and Croatian side are to be designated by the usual troop
designation, for instance, “Serbian State Guards,” “Auxiliary
Police,” [or] “Ustasha.”

For the Armed Forces Commander Southeast
(12th Army)

The Chief of Staff
By order:

[Initialed] J
[Signed] Macher

Distribution :

Commanding General and Commander in Serbia
German General in Zagreb
War Economics Staff Southeast
Armed Forces Commander Southeast: la

Ic

Oberquartiermeister
War Diary

1006

PARTIAL TRANSLATION OF DOCUMENT NOKW-1028
PROSECUTION EXHIBIT 197

ENCLOSURE TO OPERATIONAL ORDER NO. 5 OF 7I8TH INFANTRY
DIVISION, TITLED "COMBAT DIRECTIVE," 14 APRIL 1942,
CONCERNING IDENTIFICATION AND TREATMENT OF PARTISANS*

[Stamp] Secret

Enclosure 3 to No. 1323/42 Secret of 718th Infantry Division
la of 14 April 1942

COMBAT DIRECTIVE
(For the instruction of the troops)

1. Enemy — The following are to be considered and treated as
enemies:

a. Partisans — Communist insurgents.

External marks of identification — uniforms — German, Italian,
Serbian, or peasant clothing with rank insignia — Soviet Star on
the cap, rank insignia on sleeve. Political commissars — Hammer
and sickle superimposed on star.

b. Chetniks — Nationalists — Serbian insurgents (in as far as
they offer resistance).

Marks of identification — mostly brown national dress. Officers
in Serbian uniform, black fur cap with Serbian coat of arms and
national colors.

c. Dangic — Chetniks (in as far as they offer resistance).

d. All nonresidents and residents who, according to state-
ments, have returned just recently.

Refugees are to be pursued immediately, particularly since they
will be mostly leaders.

2. Not to be treated as the enemy are soldiers of the Italian
armed forces in uniform, soldiers of the Croatian armed forces
in uniform (cap insignia large badge), soldiers of the Croatian
Ustasha in uniform (cap insignia “U”), civilians, some of them
with military overcoats, with a permit for carrying arms issued
by the Croatian armed forces, or with blue-white brassards on
their civilian clothing (voluntary militia).

3. Treatment of the insurgents —

a. Insurgents captured while carrying arms, as well as all
their followers and supporters or whoever owns ammunition, are
to be shot to death.

b. Chetniks who do not offer resistance are not to be treated
as insurgents. They are at first to be sent in a group under
guard as prisoners to the prisoner collecting point.

* Extracts from the operational order to which this enclosure was attached is reproduced
in section IV C.

1007

c. In searching the villages which were in the hands of the
insurgents, the inhabitants, in particular the village elders, are
to be asked to state the names of those families whose men have
taken “to the woods” and who have cooperated with the in-
surgents.

4. Negotiations with the insurgents — Troops are to be pro-
hibited from all negotiations, as a matter of principle. Should
the insurgents offer to negotiate, the regimental commander is
to be informed immediately and action is to be taken according
to his orders.

5. Procedure during capture — During the preceding operations
it has been found that all persons present during the search of
houses or villages were driven together by the troops and taken
away as prisoners. During interrogations difficulties arose in the
effort to find out under just what circumstances the capture
was made. That is why each sergeant has to give a slip to a
prisoner describing briefly how the capture was made. For
instance, “Taken in house while working in stable,” signature
and unit. The use of prisoners for carrying wounded is pro-
hibited as a matter of principle.

6. Interrogation of prisoners — In order to make possible the
evaluation of prisoner statements, the following factors to be
evaluated by the troops should be stressed already at the first
interrogation :

a. What are the names of the leaders, and where are the
leaders, including those of smaller insurgent units?

b. Where are the depots for arms, ammunition, and food?

c. Where are family members of the insurgent leaders?

d. An investigation is to be carried out to determine whether
the prisoners include such as might be used as guides to hide-
outs and depots.

7. Treatment of the civilian population —

a. The evacuation of the civilian population from entire areas
in the villages is to be carried out only by special order of the
Combat Command [Kampfgruppe] , General Bader.

b. Villages and houses in which areas ammunition has been
found, from which shots have been fired, or the residents of
which have aided and abetted insurgents are to be burned down.
Other than that, the burning down of villages is to cease in
consideration of the necessity for troop billets.

c. Village residents whose relatives are with the insurgents
or who have supported the latter’s activities are to be taken
away as prisoners.

d. The approach to villages which are to be searched is, as a

1008

matter of principle, to be made under the protection of heavy
weapons.

e. Just and understanding treatment of the population by the
troops must show that they are only fighting the insurgents and
that the peaceful population has nothing to fear.

8. Executive poiver — The executive power in the operational
area is in the hands of the commander of combat command, Gen-

I eral Bader, and will be carried out according to his directives by
the divisional commanders. The Croatian gendarmerie units,
the Croatian police units, and the Croatian administrative officials
who remained in the area will be available along with the troop
units until the employment of the civilian Croatian authorities.

9. Croatia is a friendly country — Troops must be conscious of
this fact and are to avoid transgressing the prescribed limits of
their duties. Regarding food taken from the country, attention
is called to the directive issued via Section lb of the Division.

For the Division Headquarters (Ic)

As Deputy :

[Illegible Signature]

Lieutenant

TRANSLATION OF KUNTZE DOCUMENT 66
KUNTZE DEFENSE EXHIBIT 14

EXTRACTS FROM TEN-DAY REPORTS OF COMMANDING GENERAL
IN SERBIA TO ARMED FORCES COMMANDER SOUTHEAST,

30 APRIL 1942

Copy

[Handwritten] Enclosure 80 War Diary
Commanding General and Commander in Serbia
Operations Section 3320/42 Secret

30 April 1942

Subject: Ten-day Report

2 enclosures (only to Armed Forces Commander Southeast)

To Armed Forces Commander Southeast

I. Enemy situation

1. General — Generally quiet in Serbian area,
on communities are further to be noted, the

Isolated attacks
majority in the

1009

area occupied by the Bulgarians. In the area of eastern Bosnia,
after the retreat of the proletarian brigades following the aban-
donment of the siege of Rogatica, the masses [of the troops]
have, in general, withdrawn in time towards the south under the
pressure of the mopping up operation.

H- * * * * * *

VII. Losses and booty for the period from 15 April to
24 April 194.2

Dead Wounded Missing Captured

Enemy losses 11 2 158

Germans in Serbia 2 1

(in fatal accidents)

Serbian Auxiliary Police 4 2 24

sfc * H« * * Hi *

For the Commanding General and Commander in
Serbia

The Chief of the General Staff as Deputy:

[Signed] Kogard
Lieutenant Colonel, GSC

TRANSLATION OF KUNTZE DOCUMENT 67
KUNTZE DEFENSE EXHIBIT 19

EXTRACTS OF REPORTS FROM COMMANDING GENERAL SERBIA TO
ARMED FORCES COMMANDER SOUTHEAST, I AND 20 JULY 1942,
CONCERNING REVOLT IN CROATIA AND SITUATION
IN OTHER AREAS

Copy

[Handwritten] Enclosure 7

[Stamp] Secret

Commanding General and Commander in Serbia
Operations Section No. 3959/42 Secret

Headquarters, 1 July 1942
[Handwritten] War Diary

Subject: Situation report for the period 21-30 June 1942
2 Enclosures (only to Armed Forces Commander Southeast)

To Armed Forces Commander Southeast

I. Enemy Situation

7. General — The situation in Serbia has not changed in com-
parison with the period of the last report. At present it cannot

1010

be seen to what extent the revolt in Croatia will affect Serbia
and especially the Draja Mihailovic movement, since the in-
surgent organization of Draja Mihailovic is no longer limited
solely to the area of old Sei’bia. Activity of the Draja Mihailovic
organization extends to the territory of southern Serbia and
Albania, as far as Skoplje-Prilep, eastern Hercegovina, as well
as eastern Bosnia.

The situation in Croatia is unchanged. The entire Croatian
area is in a state of fermentation, insofar as it has not already
come to open rebellion. The prevailing insecurity of law and
the hopeless failure of the public administration are to be re-
garded as the chief reasons for this.

Further difficulties result for the Croatian state from the evac-
uation of large stretches of territory south of the demarkation
line by the Italians. These territories must now be given addi-
tional protection by the Croatian armed forces. Since for the
time being there is a lack of adequate troop protection in these
territories, the retreating insurgents will look for a new refuge
here and form new centers of unrest.

At present there are the following chief centers of unrest:

(1) Kozara and Prozara.

(2) Grmec Mountains.

(3) Northern part of Hercegovina.

(4) Papuk and Psunje Mountains.

(5) Fruska Gora.

*******

h. Eastern Bosnia — The area was pacified. Relatively slight
disturbances of the calm by attacks on villages could be elim-
inated. As a result of the retreat of the Italians south of
Sarajevo, the enemy forces who were pinned down up to now
have been freed. Quite recently enemy pressure has become
noticeable near Trnovo and Igman-Planina. Minor engagements
took- place. Arbitrary procedure of Ustasha units (shootings,
destruction, looting) created unrest among the population. The
incidents were stopped by the intervention of German troops.

5. Western Bosnia — The enemy in Kozara and Prozara-Planina
is surrounded. Attempts to break out failed. The surrounded
enemy group is apparently under the superior command of in-
surgents whose headquarters are apparently in the Grmec Moun-
tains. It can be clearly seen that the enemy is trying to relieve
the surrounded troops, as relatively strong enemy groups are
moving toward the Grmec Mountains from a southwestern and
southeastern direction.

1011

An intensification of the insurgent situation is to be noted in
the area north of the Sava. Enemy troops are becoming more
active in the Papuk-Psunje Mountains, which constitutes a serious
threat to the Agram [Zagreb] -Belgrade main line. Several acts
of sabotage are to be noted on the railroad between Novska and
Nova Gradiska.

*******

[Signed] Bader
Lieutenant General, Artillery

[Illegible initials]

Copy

Commanding General and Commander in Serbia
Operations Section No. 4151/42 Secret

[Handwritten] Enclosure 58
Headquarters, 20 July 1942
Subject: Situation report for the period of 11-20 July [19] 42
2 enclosures (only to Armed Forces Commander Southeast)

To Armed Forces Commander Southeast

[Stamp] Secret

I. Enemy Situation

1. General — In Serbia the activity of the Communist move-
ment has generally undergone a further weakening. The com-
paratively small bands appearing in the most widely different
places in the country, as well as the attacks and acts of sabo-
tage committed, have no very great significance.

On the other hand, Croatia, as before, still represents a Com-
munist area of revolt. After the defeat of the enemy in the
Kozara-Prozara PI. [Planina] the following areas still appear
as chief centers of unrest :

(1) Syrmia.

(2) Papuk and Psunje PI. and mountainous terrain northwest
of there.

(3) Samarica.

(4) Grmec Mountains (headquarters and assembly point here) .

(5) Northern part of Hercegovina.

2. Serbian area — Just as before, the Draja Mihailovic organi-
zation is at work. In recruitment of followers a certain com-
pletion of the organization appears to have been reached.
Equipment and armament might be described, as before, as
inadequate. Recruitment extends to all classes of the population,

1012

even to the loyalist Chetnik and Ljotic units. The over-all impres-
sion remains that a general national insurrection in Serbia is not
imminent in the immediate future.

* * * * * * *

For the Commanding General and Commander in
Serbia

The Chief of Staff [Illegible initials]

[Signed] Geitner

Colonel, GSC

PARTIAL TRANSLATION OF DOCUMENT NOKW-II56
PROSECUTION EXHIBIT 229

EXTRACTS FROM REPORT OF COMMANDING GENERAL SERBIA,

30 OCTOBER 1942, CONCERNING TITO MOVEMENT

Commanding General and Commander in Serbia
lc-No. 4177/42 Secret

[Handwritten] Enclosure 22

Local Headquarters, 30 October 1942

The Communist Insurrection Movement in the Area of
Former Yugoslavia

* * * * * * *

3. Leadership — The supreme leader of the Communists of
Yugoslavia is “Tito.” He is probably a Croat or a Slovene by
origin. He is alleged to have participated in the Spanish Civil
War. Up to now, no details could be ascertained regarding his
person [personal data]. Headquarters are situated in Mliniste
in the Klekovac Mountains (23 km. southwest of Kljuc). “Tito”
considers economic cooperation of the partisans — as equal part-
ners with Germany — as absolutely possible also in the Yugoslav
area.

* * * * * * *

5. Strength — Reports available estimate the total number of
Communist insurgents to be 28,000 to 30,000 men, 60 percent
of which are armed. Only a minor part can be considered con-
vinced Communists. The masses are composed of farmers and
workers who were misled by propaganda and/or fled into the
woods for fear of reprisal and extermination measures.

Active participation of women and girls as nurses and as
couriers is common practice in all units.
*******

1013

7. Organization — The basic unit of the armed Communist
groups is the peoples’ liberation partisan unit [Abteilung] which
corresponds approximately to a battalion (frequently also to a
regiment) and which is organized in companies, platoons, and
squads.

When the movement grew, it became necessary to organize
brigades which were assembled according to ancestral origin,
such as Serbian, Bosnian, and Hercegovinian brigades. A further
step was the organization of the proletarian brigades which
were to accentuate symbolically the part played by the workers
in combat. The assault brigades represented a specialization
which was due to the acceptance of selected fighters and choice
equipment.

In the 1st unit [Abteilung] of the staff for the Bosnian
Krajina even a youth battalion has been found to exist.

A political commissar is assigned to the leader in all of the
units, down to company level.

Rank insignia — All are worn on the upper part of the left
sleeve. Commandant of the zone of operation — like his staff
officers, an open chevron with the point on top and the red star
below; unit commander [Abteilungs Kommandeur] — 1 red star,
two vertical stripes below; battalion commander — 1 red star,
1 vertical stripe below ; company commander — 3 red stars ;
platoon leader — 2 red stars; squad leader — 1 red star; unit [Ab-
teilung] political commissar — 1 red star, hammer and sickle in
gold superimposed, 2 vertical stripes below; battalion political
commissar — 1 red star, hammer and sickle in gold superimposed,
1 vertical stripe below ; company political commissar — 1 red star,
hammer and sickle in gold superimposed.

All wear the Soviet star on their hats.

* ***** *

8. Method of combat — In combat, the insurgents apply the
principles of guerrilla warfare as made available to the troops
as early as fall 1941. (Commander, command staff section Ia/F
13 September 1941.)

However, as can logically be expected, the development of the
movement has brought along a change in combat method. One
can differentiate three variations.

a. The ambush of small bands with the purpose of acquiring
weapons, ammunition, and equipment to equip new members.

b. The open attack of medium size bands with the purpose of
annihilating the legal armed forces, having for a secondary aim
the acquisition of loot.

1014

c. The conquest of strategically important localities in such
numbers as to make possible a total occupation of the territory
desired.

If a large size band is scattered, the subleaders [Unterfuehrer]
return to the methods of guerrilla warfare.

The attack on morally or materially inferior enemies is con-
sidered customary. The bands evade superior forces because
intelligence service supply them in time with the information
necessary for an estimate of the situation. If a band is sur-
rounded, it scatters according to orders and attempts individually
under the protection of the night to leave the encircled area.
During the day, all means of camouflage are used like digging in,
covering with foliage, climbing up trees, etc. The treatment of
prisoners differs. Frequently it is based on propaganda reasons
and is carried out in such a manner that the prisoners are not
shot to death but are released after having been robbed of every-
thing. If the leadership considers it practical, exchange is also
suggested. Officers were shot to death in almost every case.

♦ * :f: * % sfc

PARTIAL TRANSLATION OF DOCUMENT NOKW-1806
PROSECUTION EXHIBIT 539

EXTRACTS FROM REPORT BY THE HIGH COMMAND OF THE ARMY,
9 FEBRUARY 1943, CONCERNING CHETNIK (MIHAILOVIC)

MOVEMENT

Headquarters, 9 February 1943

High Command of the Army
General Staff of the Army

Department Foreign Armies East (III)
No. 100/43 Top Secret

[Stamp]

70 copies — 2d copy

Commander in Chief Southeast (Army Group E)
Department Ic/Counterintelligence Officer
No. 446 Top Secret, 1 March 1943
Enclosures : [10]

[Office sections and initials illegible]

Croatia-Serbia

The Draja Mihailovic movement * as of 1 February 19 U3

By order :

[Signed] Gehlen

* Chetnik movement, led by Draja Mihailovic.

1015

The present report issued in limited distribution may not be
forwarded to other offices.

[Stamp] to No. 256/43 Top Secret, Commander in Chief South-
east (Army Group E) Army Report.

*******

A. General Information

1. Development — Among the various insurgent movements
which increasingly cause trouble in the area of the former
Yugoslav state, the movement of Draja Mihailovic stands in first
place with regard to leadership, armament, organization, and
activity.

It is composed of the following groups:

a. “Chetnik-units”.

b. “Followers of D.M.”.

In the former Yugoslavia the “Chetniks” were a reliable volun-
tary combat organization which, however, was organized by the
state and supported with arms and money. At the beginning of
the war they were organized as shock (Jurisni) battalions for
the carrying out of special tasks. Immediately after the capitu-
lation of the Yugoslavian Army most of these Chetniks grouped
together in greater Serbian combat units under the leadership
of their officers, thus forming the foundation of the D.M. move-
ment.

In order to be able to work unmolestedly in the scope of their
over-all organization they camouflage themselves in Serbia under
the cover of “Chetnik units loyal to the government/’ in Mon-
tenegro as “National Militia,” in Dalmatia as “anti-Communists,”
and in Bosnia as “loyal Chetnik Units.”

The followers of D.M. come from all classes of the population
and at present comprise about 80 percent of the Serbian people.
Hoping for the liberation from the “alien yoke” and for a
better new order and an economical and social new balance, their
number is continuously increasing.

2. Aims of the movement — The aim of the D.M. movement
is the creation of a greater Serbian state which is to comprise
former Yugoslavia as well as the frontier regions of Hungary,
Albania, and Bulgaria under the leadership of King Peter II
from the House of Karadjordje.

The D.M. movement, the attitude of which is more Greater
Serbian Nationalistic than Yugoslav, conceives as its primary
task the liberation of the Serbian people.

The future state shall therefore be governed by Serbian leaders
only. To all other peoples, being “minorities”, rising to leading
positions in the new state is to be made impossible.

1016

3. The personality of Draja Mihailovic — Draja Mihailovic was
born in 1893, as the son of a Serbian officer in Cacak. His an-
cestors were Serbian peasants. Shortly after he had joined the
Serbian Army the Balkan Wars began, in the course of which he
was twice decorated and rose to the rank of second lieutenant.
On 1 September 1918, he was promoted to lieutenant and, holding
that rank, took part in combat at the Salonika front. After
having been wounded he was decorated for his courage by the
King with the order of the “White Eagle.”

He was taken over into the Yugoslav Army, graduated from
the War Academy, and was then employed alternately in offices
of the general staff and with the troops.

As Military Attache in Prague and Sofia he was able to gain
a good insight into the political relations in the Balkans.

In 1937, Draja Mihailovic was relieved as colonel in the
general staff. The reason for this was presumably his continu-
ous differences of opinion with his superiors and his morbid
ambition and self-willedness.

Soon after the breaking up of Yugoslavia he tried to take into
his own hands the fate of his people.

As a fanatic fighter for the Greater Serbia idea and an en-
thusiastic follower of the Royal House he began to build in
western Serbia a movement which today extends over all of
Serbia , Bosnia , Dalmatia , as well as into the frontier areas of
Hungary, Rumania, and Bulgaria .

The center of the movement is located in Montenegro . There,
Draja Mihailovic believes himself to be out of danger of being
caught by the German occupation troops.

In January 1942, the Yugoslav Government in exile appointed
Draja Mihailovic, General of the Army, and at the same time he was
appointed “Commander in Chief of the Yugoslav Home Army” ;
a short time afterwards he was appointed Minister of War.

On account of his absolute, undisputed position as military
leader, the large majority of the Serbian people also look toward
him as the coming political leader of the new Yugoslavia.

B. Political Relations

1. Political organization of the D.M. movement — In order to
group all forces in the Yugoslav area, the movement as ascer-
tained up to now is territorially divided into the following
regions: Belgrade, western Serbia, northwestern Serbia, central
Serbia, northeastern Serbia, southern Serbia, The Kopaonik-
Mountains, southern Bosnia, central Bosnia, and northern
Bosnia.

Each region is under the orders of a “regional commander” .

1017

He supervises within his region the entire political and military
organization and propaganda. At the time of the “general
revolt” he is responsible for the quick reestablishing of peace and
order.

The regions are subdivided according to their size into districts.
The district commanders have in their areas essentially the same
tasks as the regional commanders. In addition, at the time of the
general revolt they are commissioned to take over the offices of
heads of community.

The political organization of the regions Dalmatia, Slovenia,
Montenegro, Syrmia, Backa, and Banate is not completely known
at present.

In the area of old Serbia the “Organization Staff Serbia” is
responsible for all political measures. At the time of the general
revolt it is to take over the provisional duties of the government
after having abolished the present government. The chief is
Brigadier General Trifunovic.

For Bulgaria a special staff was created under the leadership
of Professor Trklja. Its task consists of recruiting the Bul-
garian population for the D.M. movement.

2. Relation to the Yugoslav Government — Draja Mihailovic
depends only partially on the Yugoslav Government in exile in
London. Therefore, as a rule, he takes the decisive political and
military measures on his own initiative.

3. Relation to the Allies — England aids the movement by sup-
porting it with funds, war materials, and by sending officers and
men. For this reason Draja Mihailovic approves of the relation
of his government to England. He is, however, opposed to
English attempts to gain stronger political influence on the
movement.

The relations with Russia are at present characterized by the
combating of Communist bands. Draja Mihailovic, however, re-
gards this conflict as an internal Yugoslav affair and he himself
strives to achieve good relations with the Soviet Russian Govern-
ment. Therein he is supported by the efforts of the Yugoslav
Government in exile in London.

At the time of the general revolt, therefore, one must count
on large parts of the Communist bands joining Draja Mihailovic.

4. Relations with the occupying powers — Germany is con-
sidered to be the main adversary. Her occupation troops must,
as the “occupiers,” be destroyed. In order to avoid measures of
reprisal against the Serbian population, however, Draja Mihailo-
vic always warns against premature single operations.

The Serbian Government . headed by General Nedic, is consid-

1018

ere d traitorous toward the Serbian people. The removal of this
government is, therefore, one of the first demands.

The Italian forces of occupation tolerate the D.M. movement
or even support it. Often, Chetnik units are employed by the
Italians for combating Communists.

The Bulgarian troops of occupation are also considered to be
“occupiers.” Increasing attempts to destroy their morale by
planned inflammatory propaganda become apparent.

C. Military Organization

1. Over-all organization of the armed D.M . units — Within the

D.M. movement there are armed units organized militarily which
form the “Yugoslav Home Army/’

This has at present a strength of about 150,000 men in the
entire Yugoslav area and is composed as follows:

a . High Command of the Yugoslav Home Army.

b . Higher commanders of insurgents.

c. Corps of insurgents.

d . Brigades of insurgents.

e . Mobile brigades.

/. Other units.

To a) D.M. being the Chief of the High Command of the Yugo-
slav Home Army is the Commander in Chief of the Yugoslav Home
Army . He has unlimited authority over all armed units of the
movement, appoints all commanders, and is the supreme judiciary.
He orders the establishing of new units and negotiates with
foreign countries. He gives the signal for the “general revolt.”

*******

7. Sabotage and espionage — Sabotage is essentially concerned
with the destruction of installations important to communications.
In order to carry out this sabotage, “the main staff for railway
sabotage” was created in Belgrade in the summer of 1942 with its
subordinate regional railway staffs 1, 2, 3, and 4. The persons
who execute the tasks are Serbian railway employees who are
aided by so-called Trojkas (“groups of three”).

A further task of the main staff for railway sabotage consists
of observing all military transport movements of the occupying
troops.

*******

E. Final Conclusions

By the creation of the D.M. movement an organization has
been formed which — based on the fanatic will of every individual
— may gain, as a revolutionary movement, considerable political

893964—51 66

1019

and military importance in critical situations in the Balkans.
The combatants’ excellent knowledge of the country and the
positive attitude of the majority of the Serbian population favor
the movement.

The fighting value of the D.M. movement does not correspond
to that of a modern unit. The reason for this lies in their
inadequate leadership, armament, and equipment.

The leaders are young and have little military training. They
have no experience in commanding large units.

The armament is insufficient except for rifles. Heavy infantry
weapons and artillery exist only in small numbers, antitank and
antiaircraft weapons are almost completely lacking.

In its present composition the D.M. movement is inferior to the
occupying powers if the latter employ sufficient forces.

In order to suppress successfully a revolt started suddenly and
at the right moment, supplementary forces in addition to the
present occupation forces will be necessary.

* * * * * * *

TRANSLATION OF DOCUMENT NOKW-382
PROSECUTION EXHIBIT 263

ORDER OF COMMANDING GENERAL SERBIA, 28 FEBRUARY 1943,
CONCERNING REPRISAL MEASURES AND REDUCING
REPRISAL RATIOS

[Handwritten] Enclosure 96
Headquarters, 28 February 1943
[Stamp] Secret

The Commanding General and the Commander in Serbia

Section la No. 652/43 Secret

Subject: Reprisal by taking human life

In combating the insurgent movements in Serbia, the increas-
ing importance of a uniform and clear procedure with regard
to the severest measure — the taking of human life — makes it
necessary that a new and comprehensive summary of the orders
in effect in this field be issued.

All officers and heads of offices who participate in the carrying
out of reprisal measures are charged by me with the duty of
observing carefully the following regulations :

1020

I. In What Cases are Reprisal Measures Applicable

1. Security of personnel — Reprisal measures will be applied
in the case of any attack directed against the person or the life
of —

a . A national or ethnic German (armed forces, armed forces
employee, or German civilian).

b. A member of the Bulgarian occupation corps.

c . A person in the service of the occupying powers regardless
of his nationality.

d. A member of the Serbian Government or a high Serbian
official (district supervisor, mayor), officers of the Serbian State
Guard, a member of the Serbian Volunteer Corps, etc.

However, reprisal measures shall only result if —

a . The perpetrators cannot be apprehended within 48 hours.

b. The attack on the protected person was based on political
reasons.

c. The attack resulted in a wounding or killing. Killing is pre-
sumed if a kidnapped person has not returned after a certain
period.

Whether or not reprisal measures will be taken where members
of the occupying powers or of the Serbian armed units were
killed or wounded during combat action , depends upon whether
these deaths or wounds resulted from an enemy attack, or in the
course of our own operations (for instance, searches [raids], or
arrests).

In general reprisal measures will not be taken in the latter
case.

2. Security of installations — Reprisal measures also will be
taken in the event of any attack against installations important
to the war effort, in particular against the means of communica-
tion, transport and roads, communications installations, industrial
installations, and supply installations, provided that — (a) damage
has been done, and (b) the perpetrators cannot be apprehended
within 48 hours.

II. Reprisal Quotas

Until further notice the following quotas shall apply — unless
in individual cases another number is ordered:

1. For 1 German killed, or 1 Bulgarian killed — 50 hostages
are to be executed.

For 1 German wounded, or 1 Bulgarian wounded — 25 hostages
are to be executed.

2. For the killing of one person in the category listed in I, 1 c
and d, Security of Personnel — 10 hostages are to be executed.

1021

For 1 person wounded — 5 hostages are to be executed.

3. For any attack against installations to be protected accord-
ing to 12, up to 100 hostages may be shot to death, according to
the seriousness of the case.

In less serious cases it will be sufficient to make reprisal through
imposing collective punishments (burning down of houses, money
fines, penal guards, arrests, etc.).

III. What Persons Are to Be Used for Reprisal Executions

1. The confidence in the justice of the occupying power is
shaken and the loyal part of the population too is driven into
the woods by the procedure of arbitrary arrests of persons in
reprisal after an attack or an act of sabotage near the locality
where the incident occurred. This form of carrying out reprisal
measures is, therefore, forbidden.

If, however, an on the spot investigation reveals — on the part
of certain persons — cooperation with or intentionally passive be-
havior toward the culprits, those persons are to be executed
first as bandit helpers. The proclamation is to point out expressly
their complicity.

2. If such accomplices cannot be found, one must fall back on
persons who are to be considered coresponsible, although they
may not have any connection with the particular incident. Pri-
marily those persons are coresponsible who openly sympathize
with Draja Mihailovic or with communism.

3. The following are not to be used for reprisal measures:

a. Persons who have demonstrated by their behavior that they
oppose the aims of the insurgents, or persons who belong to the
categories to be protected, as for instance, officials. Exceptions
may be made for special reasons by the commanding general and
commander.

b. Women and youths under 16. These may be shot to death
only as perpetrators or bandit helpers.

4. Generally the Commander of the Security Police will furnish
persons suitable for reprisal measures, in accordance with the
above points, from the circle of suspected persons delivered over
to him in accordance with la No. 509/42 Top Secret, 4 November
1942, from the routine operations of the military and of the
police, in so far as these are not to be released as innocent or
transported for free or compulsory labor (hostages).

5. These hostages are to be collected in hostage camps by dis-
tricts. An order will be issued simultaneously regarding the
direction of the hostage camps. A sufficient supply is currently
to be kept available in the camps.

If in certain cases suitable hostages are not available or the
available hostages are insufficient, the number needed is to be

1022

taken either from a neighboring camp or from the collecting camp
in Belgrade.

6. In the event that special actions for the procuring of
hostages should be necessary, suspected persons shown in the
reviewed lists of the Serbian district supervisor are to be taken
first. (See la No. 184/43, 4 February 1943.) The commanders
of the administrative area headquarters [Feldkommandanten]
with the concurrence of the commanding general and commander
(section la) will order such operations.

7. In the individual cases hostages are to be selected from those
available who are connected by blood or political group with the
circle presumed to be guilty. With the enmity existing at present
between the two insurgent groups it would be more an inducement
than a deterrent for the perpetrators, if Communist party mem-
bers were killed for attacks carried out by D.M. followers and
vice versa. The individual selection of hostages consequently
depends on the political adherence of the perpetrators. If this
cannot be determined, Communists and D.M. followers are to
be used in equal numbers for reprisal measures. If possible,
persons provided for the execution should come from the neigh-
borhood of the culprits or from the locality where the incident
occurred.

IV. Which Authorities Are Authorized to Carry Out
Reprisal Measures

1. The introduction of reprisal measures is the task of the
commanders of the administrative area headquarters. These com-
manders, after hearing the interested parties, will decide whether
the conditions for the taking of reprisal measures are present
in the specific case. If so, the commander of the administrative
area headquarters will submit to the commanding general and
commander an application for the taking of reprisal measures.
The application must contain a short description of the incident,
losses or damages suffered, political origin of the culprits, number
of hostages provided for execution.

2. The commanding general and commander will decide on the
carrying out of the execution applied for by letter or teletype.

3. The commander of the administrative area headquarters
orders the district commander [Kreiskommandant] in whose area
the action took place or which is the home of the culprits to
carry out the reprisal measures. After contacting the SD branch
office concerned and getting the opinion of the competent Serbian
district supervisor, the district commander will suggest to the
administrative area headquarters commander persons suitable for
the execution in accordance with III, paragraph 7.

1023

4. The district commander issues the necessary instructions
for the carrying out of the execution. Military and police units
are to comply with this request to hold executions. Generally,
losses of the military will be retaliated for by the military. The
police will furnish the execution squad in reprisal actions for
their losses and, furthermore, in reprisal actions for all attacks
on nonsoldiers and installations under protection.

5. In general, the executions of hostages will take place in
remote localities without participation of the population. There
must be no furnishing of Serbian martyrs. The interment must
be sufficiently deep. A list of the names of the people killed must
be forwarded via the district headquarters to the administrative
area headquarters which will furnish death certificates on special
application.

6. The district commander responsible for carrying out the
reprisal measures will immediately report the execution to the
administrative area commander. The latter will arrange publica-
tion and will inform the commanding general and commander in
Serbia (section la) by teletype of the carrying out of the execu-
tion. A file copy of the publication is to be sent in later.

V. Publication of Reprisal Measures

Since the reprisal measure represents not only a punishment
for crimes committed but is to serve primarily as a horrifying
example and a deterrent to further crimes, every reprisal measure
must be published. Reprisal measures must be made public in
such a way that they reach the culprits and circles close to them.
The proclamation must emphasize the infamy of the deed and
the complicity of those executed. Persons executed must not be
described then as “persons” but as Communists, D.M. followers,
bandit helpers, etc. Publications are to be signed “Commander
of Administrative Area Headquarters.”

VI. The Taking of Hostages and Reprisal Prisoners

1. All the reprisal prisoners in the camps of the district head-
quarters are to be considered hostages. The names of the camp
inmates, therefore, are to be published in the area of the head-
quarters for the population, with the threat that these inmates
will have to pay with their lives for specified disturbances affect-
ing the public order in accordance with section I. If in indi-
vidual ca"°s a military unit requires hostages, these are to be
taken generally firm the camps of the local district commander.

2. As far as persons are detained as hostages by subordinate
units and offices by reason of orders issued previously, the chiefs
of the offices in agreement with the SD will decide, in accordance

1024

with section III, paragraph 1, which persons are appropriate as
hostages and are to be transferred to hostage camps. There
will no longer be an exchange of these persons as before. All
other persons are to be released.

[Marginal note] T. carrying out of this order is to be reported by 20 March
1943.

3. If arrests of persons as hostages become necessary for the
prevention of anticipated conspiracies or attacks in certain indi-
vidual cases, procedure will be according to [section] III, para-
graph 6. In the execution of reprisal detainees as hostages as
far as jurisdiction and procedure is concerned, section IV is to
be applied.

VII. Validity of Orders

In cases of reprisals procedure is to be according to this order
immediately after the time of receipt of this order and not later
than 5 March 1943.

The folloiving orders are rescinded:

1. Military Commander in Serbia, Administrative Staff, Diary
No. 144/41 Secret, VII dated 17 July 1941, section II, (paragraph
4; section IV, paragraph 3).

2. All orders comprised in the summary Plenipotentiary Com-
manding General in Serbia Ic No. 759/42 Secret, dated 2 February
1942.

3. Plenipotentiary Commanding General in Serbia — Adminis-
trative Staff /Headquarters Staff la Diary No. 197/42 Secret,
dated 20 February 1942.

4. Commanding General and Commander in Serbia, Adminis-
trative Staff /Ic, Diary No. 532/42 Secret, dated 21 April 1942.

5. Commanding General and Commander in Serbia, Adminis-
tration Staff /Ic, Diary No. 861/42 Secret, dated 14 November
1942.

6. Commanding General and Commander in Serbia, Section la,
No. 5993/42 Secret, dated 22 November 1942.

7. Commanding General and Commander in Serbia, la No.
6090/42 Secret, dated 1 December 1942.

[Illegible initial]

[Signed] Bader

Distribution :

704th Jaeger Division 3 x [3 copies]

F. Kdtren. [Administrative Area Headquarters]

K. Kdtren. [District Headquarters]

DVO Bulgarian Occupation Corps [German Liaison Officer
with Bulgarian Occupation Corps]

1025

Higher SS and Police Leader
Commander of the Regular Police
Commander of the Security Police

Bw. [Bv.] d. AA. [Plenipotentiary of the Foreign Office]
Organization Todt
Senior Signal Officer
0. Qu.

Ic

War Diary

PARTIAL TRANSLATION OF DOCUMENT NOKW-380
PROSECUTION EXHIBIT 283

EXTRACTS OF REPORT FROM COMMANDING GENERAL SERBIA TO
COMMANDER IN CHIEF SOUTHEAST, 18 JUNE 1943,
CONCERNING EXECUTION OF HOSTAGES

*******

Enclosure [Illegible]

18 June 1948

To Commander in Chief Southeast Urgent

For information : Commander of the German Troops in Croatia
German Plenipotentiary General in Croatia
Daily Report of 18 June 194-3

*******
1st Royal Bulgarian Occupation Corps —
*******

4. Three hundred and fifty Communists shot to death in re-
prisal for the murder of three German customs officials and
surprise attack on a Bulgarian leave train (see daily reports of
16 and 18 May). Fifty D.M. hostages shot for the murder of
an RSK man.

*******

Commanding General and Commander in Serbia, la

[Signature] Bode

Colonel
[Initial] B

1026

TRANSLATION OF DOCUMENT NOKW-155
PROSECUTION EXHIBIT 306

ORDER OF THE COMMANDER IN CHIEF SOUTHEAST,

10 AUGUST 1943, CONCERNING DEPORTATION OF PRISONERS
AND ENEMY DESERTERS, AND REPRISAL AND EVACUATION

MEASURES

Copy-

Secret

[Handwritten] lllg

Headquarters, 10 August 1943

The Commander in Chief Southeast,
simultaneously Acting Commanding
General of Army Group E

IaF, No. 604/43 Secret

Order

For Treatment of Prisoners and Deserters in Bandit Fighting,
Reprisal and Evacuation Measures

I. Treatment of prisoners and deserters, execution of revenge
measures, and evacuations are not matters of administration but
rather measures of combat and/or of combat preparation and of
security.

II. The Fuehrer order concerning the importation of human
material [Menschenmaterial] into the Reich to ensure the neces-
sary supply of coal (IaF, No. 120/43 Secret of 27 July 1943)
is authoritative for the treatment of prisoners; accordingly, all
captured bandits are to be deported to the Reich by way of the
prisoner collecting points.

III. Orders regarding this matter are in detail as follows :

1. Captured bandit members are to be deported to the prisoner
collecting points; the commanders are to examine whether the
previously erected prisoner collecting points are sufficient.
Further transport from the collecting points into the Reich is to
take place according to separate order of the Oberquartiermeister.

An exception to this regulation is possible only if the combat
situation does not permit a deportation.

The seizure of individual bandits for intelligence missions
(counterintelligence units, counterintelligence offices, SD, Secret
Field Police [military] ) is still necessary.

1027

2. Deserters are also regarded as “prisoners.” Considering
the good results experienced in Russia when deserters were
accorded better treatment, through propaganda, etc., shooting
of deserters must be discontinued.

Directives concerning deserter propaganda proceed through the
Commander in Chief Southeast, section Ic/counterintelligence
officer.

3. As already ordered in the directive of the Commander in
Chief Southeast, Ia/Id No. 566/43 Secret of 14 July 1943, re-
prisal measures are to be executed as heretofore with most
severe means, if an inimical attitude is discernible in the popu-
lation.

In territories occupied by the bandits, in which surprise attacks
have been carried out, the arrest of hostages from all strata of
the population remains a successful means of intimidation.

Furthermore, it may also be necessary to seize the entire male
population, insofar as it does not have to be shot or hanged on
account of participation in or support of the bandits, and insofar
as it is incapable of work, and bring it to the prisoner collecting
points for further transport into the Reich.

Surprise attacks on German soldiers, damage to German prop-
erty, must be retaliated in every case with shooting or hanging
of hostages, destruction of the surrounding localities, etc. Only
then will the population announce to the German offices the col-
lecting points of the bandits, in order to remain protected from
reprisal measures.

Reprisal measures are to be ordered by the division commanders
and/or independent regimental commanders in order to avoid
encroachments on subordinate offices and individual soldiers, and
to prevent a false, unjust treatment of the population.

4. In the territories especially valuable to the conduct of
battle, the male inhabitants between 15-60 are to be evacuated.
They are to be collected together in guarded labor camps and/or
insofar as they are capable of working, to be transported into
the Reich. Evacuations must be carried out decisively in order
to prevent a premature escape of the population.

The territories to be evacuated are the strips of coast especially
suitable for landings, areas of important pass heights and pass
lanes, strips of terrain along especially dangerous railway line
stretches, etc. The evacuations completed are to be reported
through the commanders to the Commander in Chief Southeast.

5. The order for the treatment of bandits hitherto authorita-
tive — Supplements to Armed Forces Commander Southeast la,

1028

No. 2868/42 Top Secret of 28 October 1942, to the Fuehrer order
re combating of so-called commando operations — is herewith
rescinded.

Signed : Loehr

General

Certified true copy :
[Illegible signature]

First Lieutenant

TRANSLATION OF DOCUMENT NOKW-159
PROSECUTION EXHIBIT 417

ORDER OF MILITARY COMMANDER SOUTHEAST TO HIGHER SS AND
POLICE LEADER, 23 OCTOBER 1943, DIRECTING REPRISAL EXECU-
TIONS; REPORT OF MILITARY COMMANDER SOUTHEAST TO
809TH ADMINISTRATIVE AREA HEADQUARTERS, 26 NOVEMBER 1943,
CONCERNING EXECUTIONS

Headquarters, 28 October 1943
[Handwritten] Supplement 110

Military Commander Southeast
Section Ia/No. 246/43

To the Higher SS and Police Leader

For information : 809th Administrative Area Headquarters ; Ger-
man Liaison Staff with the 1st Royal Bul-
garian Occupation Corps

1. As revenge for the surprise attack on the cattle purchasing
detachment at Sljivar (6 km. SW of Zajecar) by a D.M. and a
Communist band, through which 8 German, Bulgarian armed
forces and police members were killed, 8 German and Bulgarian
armed forces members wounded, and from which 2 German
Military Policemen are missing, 100 D.M. reprisal prisoners and
300 Communist reprisal prisoners are to be shot under considera-
tion of the reprisal measures which have already taken place
consisting of burning down of houses and the losses which the
bandits suffered in this operation.

2. As revenge for the surprise attack on the collecting detach-
ment of the 8th Auxiliary Police Battalion on 6 October 1943, at
Jelasnica by a D.M. band, during the course of which 3 auxiliary
policemen were killed, 8 heavily wounded and 9 slightly wounded,
100 D.M. reprisal prisoners are to be shot.

1029

The Higher SS and Police Leader is charged with carrying out
the execution. It is to take place in the Zajecar district.

In the publication of the reprisal measures relating to 1, ref-
erence is to be made to the horrible treatment of the wounded
who fell into the hands of the bandits and the mutilation of the
corpses; in the proclamation concerning 2, it is to be expressed
that the reprisal quota would have been considerably higher if the
wounded had not been decently treated.

Enclosure 92

[Stamp] Secret

26 November 1943

To 809th Administrative Area Headquarters

As revenge for the surprise attack on the cattle purchasing-
detachment at Sljivar, 100 D.M. followers and 200 Communists
were shot on 29 October 1943, in Belgrade.

As revenge for the surprise attack on the collecting detach-
ment of the 8th Auxiliary Police Battalion at Jelasnica, 100 D.M.
followers were shot on 29 October 1943.

The reprisal measures are to be published in the Zajecar dis-
trict. In the publication reference is to be made expressly to the
horrible treatment of the wounded who fell into the hands of the
bandits and the mutilation of the dead in case 1.

An enclosure copy is to be sent here.

Military Commander Southeast

la No. 1858/43 Secret

i

PARTIAL TRANSLATION OF DOCUMENT NOKW-1246
PROSECUTION EXHIBIT 472

EXTRACTS FROM WAR DIARY NO. 3, LXVIII ARMY CORPS,
CONCERNING OPERATIONS IN PELOPONNESUS, GREECE,

28 NOVEMBER-14 DECEMBER 1943

War Diary No. 3, LXVIII Army Corps, started 1 July 1943,
concluded 31 December 1943.

LXVIII Army Corps was subordinate
1-27 July 1943, to Army Group E;

28 July-9 September 1943, to the 11th Italian Army; 1

9 September-4 October 1943, to Army [Armeegruppe] Southern

Greece ; 1

5 October-31 December 1943, to Army Group E.

The war diary was kept 1 July-31 December 1943 by Captain . f
(Cavalry) Sinapius.

*******

1030

28 November 19A3 — In Old-Corinth, the reinforced 117th Signal
Battalion carried out a mopping up operation in the course of
which 67 hostages were seized and arms and propaganda material
secured.

*******

A December 19 US — In Aighion, 50 hostages shot to death as
reprisal measure for attack on truck on 2 December.

5 December 19 A3 — 50 hostages hanged at the railroad station
of Andritsa as reprisal measure for attack on 1 December.

*******

7 December 19 U8

*******

Twenty-five hostages shot to death in Gythion as reprisal meas-
ure for attack by bandits on 3 December west of Gythion.

*******

8 December 19US — Operation “Kalavritha”. The combat groups
advanced concentrically on Kalavritha (targets of the day about
10 kilometers around Kalavritha). According to statements of
2 men who escaped from the 5th Company of the 749th Light
Regiment, which had been annihilated near Kalavritha on 19
October the captured company commander, Captain Schober, and
78 men are alleged to have been shot on 7 December, in the moun-
tains East of Kalavritha. To prevent the bands from escaping
toward the east, the 3d Battalion of the 22d Air Force Light
Regiment of Corinth is committed for the area, 25 kilometers
southeast of Kalavritha.

*******

9 December 19 A3 — Combat Group Lieutenant Colonel Woelf-
finger reaches Kalavritha without contact with the enemy. Com-
bat Group Captain (Cavalry) Gnass thrusting ahead to the West
up to Tripotamia.

*******

10 December 19 A3 — Operation “Kalavritha”. A reconnaisance
patrol of platoon strength of the reinforced company of the
965th Fortress Regiment, makes contact with the enemy (10 kilo-
meters south of Liwia) . Own losses, 10 dead, 11 wounded.

Continued march of combat group Lieutenant Colonel Woelf-
finger to Tripotamia without contact with the enemy.

11 December 19 AS — Operation “Kalavritha”. In reprisal for
the 78 murdered soldiers of the 5th Company of the 749th Light

1031

Regiment, nine villages in the area of “Kalavritha” destroyed up
to now, 142 members of the male village population shot to death.
*******

12 December Id US — Operation “Kalavritha” concluded without
any notable success except for the continuation of reprisal meas-
ures. It again has been demonstrated that an insufficiently mobile
Light Regiment in the mountains is insufficient for the execution
of a large scale operation (encirclement of bands).
*******

IS December 19US — During the course at additional reprisal
measures, Kalavritha entirely destroyed, three more villages
burned down, and 511 male inhabitants shot to death.

Seventy corpses of the murdered soldiers of the 5th Company
of the 749th Light Regiment were found in Masi (10 kilometers
southeast of Kalavritha).

*******

74 December 19 U3 — During the continuation of the reprisal
measures in the area of Kalavritha, Mazeika and two monasteries
were destroyed. The combat groups are marching back to their
garrisons. During the course of the reprisal measures a total of
24 villages and 3 monasteries were destroyed ; 696 Greeks shot to
death.

*******

TRANSLATION OF DOCUMENT NOKW-154
PROSECUTION EXHIBIT 424

ORDER OF MILITARY COMMANDER SOUTHEAST, I JANUARY 1944,
CONCERNING COMPETENCY FOR ORDERING REPRISAL MEASURES

[Stamp] Secret

Military Commander Southeast
Section la No. 58/44 Secret

[Handwritten] War Diary
Headquarters, 1 January 1944
Secret

[Handwritten] Enclosure 1

Subject: Reprisal measures

Reference: Commander in Chief Southeast (Army Group F) Sec-
tion Ia/F No. 296/43 Secret, 22 December 1943
Supplementing letter Commander in Chief Southeast (Army
Group F) Ia/F 296 dated 22 December 1943, the following is
ordered with regard to Serbia:

1032

1. The commanders of the administrative area headquarters are
competent to order reprisals, and can assign their execution to the
competent commanders of the district headquarters. For special
cases the military commander reserves to himself the right to
issue orders for reprisal measures.

2. Before a reprisal measure is ordered, approval must be ob-
tained through teletype from the Military Commander Southeast.
The request must contain brief description of facts; losses, as
well as damage, which have occurred; political affiliation of the
perpetrators ; type and extent of reprisal measures intended.

3. Persons or homes suitable for the execution of reprisal
measures are to be determined after prior contact with the com-
petent SD and counter intelligence detachments has been made.
The Serbian district administrators are to be given a hearing.

4. Troops and police have to comply with requests to carry out
reprisal measures. Generally, losses suffered by the troops will
be revenged by them. The police will provide an execution de-
tachment to avenge its own losses and, in addition, all attacks on
protected nonmilitary persons and objects.

5. The execution of reprisal measures is to be reported in the
daily reports. Copy of the public notice to be signed, “The Com-
mander of the Administrative Area Headquarters,” is to be
forwarded subsequently.

6. The arrest of hostages to prevent expected outrages or
attacks will be ordered by the commander of the administrative
area headquarters with approval of the Military Commander
Southeast.

For further procedure paragraph 2 applies.

7. Participation by the Serbian Government and administra-
tion in the execution of reprisal measures and the employment of
armed Serbian formations may take place upon their request.

8. The orders of the commanding general and commander in
Serbia la No. 652/43 Secret, items 1-3, dated 28 February 1943,
29 May and 31 July 1943, are rescinded.

Current reprisal procedures not corresponding to this order-
are to be discontinued.

Signed: Felber

Certified :

[Illegible signature]

First Lieutenant

Distribution :

Down to battalion and district headquarters

1033

PARTIAL TRANSLATION OF DOCUMENT NOKW-469
PROSECUTION EXHIBIT 482

EXTRACTS FROM REPORT OF SPECIAL PLENIPOTENTIARY SOUTHEAST
CONCERNING "THE BLOOD BATH OF KLISSURA" (GREECE),

15 MAY 1944, VIA FOREIGN OFFICE TO COMMANDER IN CHIEF
SOUTHEAST FOR INVESTIGATION

****** *

Top Secret [Stamp]

[Handwritten] VAA— To OKW

* * */Foreign Group

1264/44 Top Secret, Foreign II A 3

Command Post, 25 May 1944

3 copies — 2d copy

[Stamp]

Commander in Chief Southeast 2100

(Army Group F) Group Ic/AO

No. 4450 Secret-26 May 1944-Enclosure * * *

Ic 03 05 07 D Ic/L for special missions
Counterintelligence Officer AI All AIII St.P G.F.P.

[Handwritten] Commander

[Illegible initial] [Illegible initial]

[Stamp]

Commander in Chief Southeast
(Army Group F) Central Office
Arrived: 26 May 1944
No. 647/44 Top Secret
Enclosure Section Ic

To Chief Armed Forces Operations Staff
Via Liaison Officer, Foreign Group

Copy

The Foreign Office forwards the following telegraph report from
the Special Plenipotentiary Southeast, Envoy Neubacher, under
Pol I M 1138 Top Secret, dated 20 May 1944. The report is
dated 15 May. Rapid investigation and information as to its
outcome is requested.

Commander in Chief Southeast with the request for speedy
investigation and report of the results.

By order:

[Illegible signature]

1034

Subject: “The Blood Bath of Klissura”

According to the reports previously submitted to me on 5 April,
215 inhabitants of the village Klissura in the area of Salonika,
mostly women, children and old men, were killed and 27 people
wounded. This allegedly was done by order of the commander
of an SS regiment from Salonika. This action constitutes a most
serious infraction of an order on reprisal measures issued by the
Commander in Chief Southeast, with my agreement, on the
basis of the Fuehrer directive, dated 29 October 1943.

Reports available up to now show that among the dead were
9 babies less than 1 year old; 29 children from 1 to 5; 39 old
people between 60 and 90.

The competent military authorities are investigating this — on
the basis of the present report — senseless and irresponsible excess.

The preliminary report of our consulate general indicates to
me that German trucks were shot at by partisans at a distance
of about 21/2 kilometers from the village on 4 April. No losses
occurred. Two German motorcyclists were allegedly killed later
by hand grenades thrown by an Italian of the same group of
partisans at the same spot. The motorcycles are said to have
been taken to Klissura. As happens daily in numerous villages,
partisans had been quartered over night in the village itself.
Partisans surrounded the village and forbade the inhabitants
to leave the village and to use the pasture. After the last par-
tisans withdrew on 5 April at about 1400 hours, the adult men
left the village, because repeatedly in northern Greece and else-
where too it happened that our side proceeded with mass shootings
of the male population after the partisans had left. The men
went to a neighboring village to a monastery. Women, children,
and old men were almost the only ones to remain. The slaughter
of those who were left began approximately at 1600 hours, and
allegedly was stopped later by intervention of an army officer.
I do not know the number of houses burned down.

The village priest was shot with his wife on the street. The
house of a Greek captain fighting on our side with a group fight-
ing the partisans was burned. All the relatives of a tailor who
had worked for many years for the consulate general in Salonika
were killed.

* * * * * * *

In view of the necessity of accelerating the final action [for
pacification] of the population* the political effects of such inci-
dents are catastrophic. It is utter insanity to murder babies,
children, women, and old men because heavily armed Red bandits

* In original document “die Schlussaktion in der Bevoelkerung- vorwaertszutreiben.”
893964—51 67

1035

billeted themselves overnight, by force, in their houses, and be-
cause they killed two German soldiers near the village. The
political effect of this senseless blood bath doubtlessly by far
exceeds the effect of all propaganda efforts in our fight against
communism.

No matter what the final result of the investigation may be,
the operation against Klissura represents a severe transgression
of existing orders. The wonderful result of this heroic deed
is that babies are dead. But the partisans continue to live and
they will again find quarters by use of submachine guns in com-
pletely defenseless villages. It is a further fact that it is much
more comfortable to shoot to death entirely harmless women, chil-
dren, and old men than to pursue an armed band with a manly
desire for vengeance and to kill them to the last man. The use
of such methods must necessarily lead to the demoralization of a
genuine combat morale.

I shall follow up this affair on the basis of the Fuehrer directive,
dated 29 October 1943. The Reich Foreign Minister has been
requested by me today, already, to inform the highest competent
military authorities of my attitude and in the interest of our
foreign policy in this area to ask for a most thorough investi-
gation.

[Handwritten] N. has been informed that F. has asked for a very thorough
investigation.

[Handwritten] We will most certainly do that!

C. Testimony of Defendants and Defense Witnesses
EXTRACTS FROM THE TESTIMONY OF DEFENDANT LIST*
DIRECT EXAMINATION

****** *

Dr. LATERNSER (counsel for the defendant List) : Which order
arrived from the OKW during the time General Boehme was
appointed?

Defendant List: At this time the order from the OKW of
16 September [1941] was received which asked us to adopt the
most severe measures and requested us at the same time to have
a certain ratio of the shooting of hostages.

Q. What is the date of this order?

A. 16 September.

* The complete testimony is recorded in mimeographed transcript, 16-19, 22-23 September
1947, and 13. 22 Janaary 1948; pp. 3148-3464. 8824-8868, and 9484-9493.

1036

Dr. Laternser: Your Honor, this is Document NOKW-258,
Prosecution Exhibit 53,* volume II, page 67 of the English text,
and in the German text, volume II, page 52.

Did you at that time get to know of this order?

Dependant List: Yes.

Q. Do you know whether orders of the OKW were examined
before they were sent out?

A. That I don’t know, but I assumed it. In any case, I con-
sidered orders and directives issued by the OKW to be legal.

Q. What was your personal attitude to this order?

A. I rejected this order for purely humane reasons.

Q. Did you undertake to take any steps in regard to this order?

A. In my preliminary examination I stated that during that
time I protested very energetically against an order received from
the OKW. I did this by protesting to the la, who was my
deputy at that time. For a long time I did not know and could
not explain to myself against which order I protested. Knowing
the facts now I must assume with certainty that it must have
been the order of the 16 September, because apparently no other
order was received from the OKW during those days.

Q. In what manner did you protest against this order?

A. I think I protested to the deputy chief in a very clear man-
ner and I ordered him to bring this, my opinion, to the notice
of the OKW.

Q. Who was deputy at that time?

A. That was Colonel Kuechler at that time.

Q. Did he do that?

A. Yes. He did it.

Q. What did he report to you about it?

A. The protest in connection with this was rejected.

Q. Why did you not resign from your office then?

A. Resignation of an officer in wartime does not exist, or did
not exist; in fact, Hitler had forbidden it, and he had expressly
said that it was he who decided when a general or an officer
was to resign.

Q. In what manner was this order received by your office?

A. It was received in written form.

Q. In several copies?

A. It was received with subsidiary copies.

Q. What do you mean by subsidiary copies?

A. That means the superior office sends along to this office all
the copies which are to be sent to all the subordinate offices.

Q. What happened to these subsidiary copies?

A. These subsidiary copies were passed on.

* Part of thjs document is reproduced in section B.

1037

Q. Was anything added to this order when it was passed on?

A. No.

Q. Was the transmission signed?

A. Yes.

Q. By whom?

A. By the deputy chief.

Q. What would you say as to how the command in the southeast
was designated by Hitler and OKW in general?

A. It was repeatedly called weak.

Q. This order, [Doc. NOKW-258, Pros.] Exhibit No. 53 of
16 September, had been issued. What did you do?

A. In the beginning of October I issued a teletype, dated
d October.

Q. May I point out to the Court that the teletype of 4 October
is Document NOKW-203, Prosecution Exhibit 70,* which in the
English document book 2 is on page 141, and in the German docu-
ment book it is on page 108. To whom did you address this tele-
type of 4 October?

A. To the Plenipotentiary Commanding General in Serbia.

Q. Who else did you address it to ?

A. No one else.

Q. Why not to other officers?

A. That wasn’t necessary because the Plenipotentiary Com-
manding General was in Serbia and he alone was the person
responsible in Serbia for the issuing of the orders for the crushing
of the Serbian movement, and he possessed executive power in
these respects.

Q. Did you assume that this office then informed all the other
offices?

A. That was their task ; they had to do that.

Q. Under point 2 of this order you ordered, and I quote : “Men
in the insurgent territories who were not encountered in battle
are to be examined,” and b, “if they are only suspected of having
taken part in combat, of having offered the bandits support of
any sort, or of having acted against the armed forces in any
way, they are to be held in a collecting camp. They are to serve
as hostages in the event that bandits appear or if anything against
the armed forces is undertaken in the territory of their home
localities, and in such cases, they are to be shot.” What is your
present attitude to the order which I have just read?

A. I am of the opinion that under the conditions existing at
that time it was militarily necessary, and that it was admissible
under international law.

Q. Why didn’t you order any ratios?

* This document is reproduced in section B.

1038

A. Because to me it seemed difficult to fix ratios; the retaliation
measures or reprisal measures should generally adapt themselves
to the facts of the case.

Q. Who may order reprisals?

A. Every commander from divisional commander upwards.

Q. Where was that laid down ?

A. In the ten commandments.

Q. Which ten commandments do you mean?

A. These which every soldier had to carry, or was supposed
to carry.

Q. What were the contents, quite briefly?

A. Essentially the provisions of the Hague Convention.

Q. And where were those ten commandments for the soldiers
contained?

A. In his pay-book.

* * * ❖ * * *

Q. What was the actual purpose of [Doc. NOKW-203, Pros.]
Exhibit 70, that is, of the teletype of 4 October.

A. The actual purpose was to create orderly conditions and at
the same time to mitigate the decree of the OKW of 16 September
and to bring about milder retaliatory measures.

* * * * * * %

EXTRACTS FROM TESTIMONY OF DEFENDANT FOERTSCH*

DIRECT EXAMINATION

He ^ * He He *

Dr. Rauschenbach (counsel for the defendant Foertsch) :
Witness, I shall now turn again to your actual activity in the
Southeast. What was the task of the army in the Southeast?

Defendant Foertsch: When I became Chief of Staff of the
12th Army the campaign was concluded and only the conquest
of Crete was still to be expected. For this purpose the 12th
Army had merely to perform auxiliary services through rein-
forcements, supplies, and, too, by making available the 5th Moun-
tain Division. The task of the army was at that time to occupy
the areas which had been assigned to the German troops for
occupation and to start with the preparation for the preventing
of an invasion.

Q. What was the significance of this task within the framework
of the general war events?

* The complete testimony is recorded in the mimeographed transcript pages 9-10, 13-17,
20-21 October 1947, pp. 4044-4699.

1039

A. Seen on a large scale the Southeast meant three things.
First of all, the large southern flank of the Russian theater of
war, secondly, the route to Africa for supplies and reinforcements
and, thirdly, the air bases for the eastern Mediterranean area.

Q. And what was the main prerequisite for the fulfilling of
these tasks?

A. The main prerequisite for the fulfillment of these tasks was
peace and quiet in the interior of this area.

Q. And how did one attempt to achieve that?

A. Through most extensive consideration of the interests and
needs of the population; certainly not, as I occasionally heard,
through hatred or vengeance.

Q. What difficulties did the government face in their endeavor
for peace and quiet?

A. The difficulties were mainly, during the first time estab-
lished, in two things. Firstly, in my opinion, unfortunate policy
regarding the Southeast, and secondly, in the flare-up and increas-
ing of the insurgent movements in the individual districts.

Q. What especially provoked these insurgent movements?

A. For this fact there were several reasons in existence. There
was the previously mentioned, rather unfortunate policy, then
the contrast in the ethnic groups in this area, and finally the help
and support from the outside which incited these movements.

Q. And what did you regard as the unfortunate policy in
that area?

A. I can only state here my own personal attitude which I had
at that time. I considered the dividing up of Yugoslavia immedi-
ately after the campaign an unfortunate solution and, even if
one undertook such a subdivision, I considered the frontier be-
tween Croatia and Serbia a specially poor solution. Besides, it
seemed to me that the political supremacy which one had at-
tributed to Italy made the general conditions even more difficult.
And, finally, according to my personal opinion the filling of the
posts of delegates and envoys in that area was not particularly
well chosen, with one exception, and that is Envoy Altenburg in
Athens, which I consider proper and adequate.

Q. The help and support of the bands from the outside — could
that be felt from the very beginning?

A. Yes. In any case very clearly when the Russian campaign
had started.

Q. And as a consequence was it mainly and essentially a Com-
munist influence?

A. Essentially, yes, but there were additional motives — the
already mentioned contrast of the ethnic groups in this area, and

1040

also purely nationalistic motives. There were also the unavoid-
able economic difficulties which were the result of the war.

Q. Witness, the witnesses whose affidavits I have presented
here, and also the prosecution, consider you, in a certain respect,
as an expert on the Balkans. How long were you in the Balkans?

A. From 6 April 1941, that is as chief of staff as of 10 May,
until 4 March 1944.

Q. In connection with this I would like to ask you to give us
quite briefly just as an over-all picture of the development of these
insurgent movements during these 3 years — just an outline of
the main points.

A. I can, of course, only do it in broad outlines because I have
no documentary information available now. I would like to point
out expressly that it is quite possible that I make errors, espe-
cially concerning chronological sequence. But if I picture to
myself today the course of events in the various districts, I have
the following picture. In Serbia the illegal warfare against the
German armed forces started with individual sabotage actions,
small band operations with participation of large circles of the
population. At that time the Communist and Nationalistic
elements were intermingled. In the further course of events,
especially in Serbia, the Nationalistic movement, characterized by
Mihailovic, more or less absorbed the Communist movement,
partly through active fighting on the part of Mihailovic and his
people, and partly because, according to my experience, the
Serbian peasant does not off-hand feel inclined toward com-
munism. Therefore, Tito never played a particularly important
part in Serbia. The fighting of the Mihailovic movement and the
bands always existing next to it did not show a uniform increase
but rather occurred in waves. These ups and downs were for one
reason evoked by the more active combating on the part of the
German armed forces, and on the other hand by the various in-
fluences of the forces outside the southeast area. Until finally
Mihailovic lost ground because the Allied support was taken away
from him, and until finally, out of his basic opposition to the Com-
munist idea, he attempted to attach himself more and more to
the German armed forces. According to my picture, a totally
different development took place regarding the insurgent move-
ment at Croatia. There were different conditions prevailing
there. The contrasts were strongly interwoven, as the witness
Dr. Ibbeken described them here; there was a certain rejection
of Mihailovic and his system by the population and above all
there were Italian occupation methods. All these things combined
to create in Croatia the soil which the tendency originated at
Moscow needed. So we see in Croatia in contrast to Serbia —

1041

in the time during which I could observe — a steady increase of
unrest.

Not in a fashion that one could, let us say, observe a definite
increase in the power of the leading man, Tito, over the popula-
tion, but rather in the streaming of all elements of unrest in the
whole southeastern area towards this Croatian chaos. It is
typical that the first reasonably well organized band came to
Croatia from Montenegro, and the same influx came from Albania
and to a small extent from Serbia.

In Greece the situation again was completely different. Im-
mediately after the campaign, compared with other districts,
there was peace there. In my opinion the inconsiderate Italian
occupation created the basis of the discontent. It was also strik-
ing that in northern Greece, in the areas which are again being
talked about today, the Communist movement tried to gain
ground. They didn't succeed at that time, so that in Greece
up till about the beginning or the middle of 1943, the situation —
always compared with the situation in Serbia and Croatia — was
comparatively orderly and quiet.

It showed quite clearly here that the flai’ing up of the unrest
was in connection with events outside of the area, in Africa, in
Italy, in Russia. So that just for the Greek area that factor
applies which in my opinion is significant for the judgment of the
whole southeastern area. The conditions of the total events
together with the inner and outer inciting forces for the insur-
rection were the decisive factors and any real initiative of the
German military leadership was left no room. In Bulgaria too,
and especially in the old Bulgarian area, that is in the Bulgarian
sovereignty, bands formed which quite obviously were influenced
by Moscow, which however did not reach a larger stage of
development for specific reason.

Q. How then, did the military leadership in the Southeast try
to cope with the situation?

A. The military leadership in the Southeast, for a period which
I can judge, has always endeavored to use as first and foremost
means the strengthening of its own troops which actually would
have been sufficient for an occupation of a quiet country. This
reinforcement was intended to achieve two aims — first of all,
to nip the insurgent movements in the bud and not to let them
grow, and secondly, in the area which had been cleared and
mopped up, to establish a net of troops as closely woven as
possible which would, as much as possible, have prevented a
reflaring up of this insurgent movement.

Q. Of what nature were the counterforces?

A. The nature of the counterforces was characterized by indi-

1042

victual sabotage acts, band warfare of a small and larger extent,
and both mentioned factors and methods found support in the
population, at least in large parts of the population.

Q. Did you consider that illegal, that is to say in violation of
the laws of war?

A. Yes.

Q. Did you ever doubt this, your opinion?

A. No, never.

Q. And why not?

A. To me it was always clear, and it has always remained clear,
that the illegality of all these actions could never be doubted for
two essential reasons — firstly, Yugoslavia and the Greek armies
had capitulated. Secondly, the countries were properly occupied.
Therefore, every armed action irrespective of what kind was
a breach of the capitulation conditions and thus a violation of
the duties of the population of an occupied country.

Q. Was that the situation during the whole time while you
were in the Balkans?

A. Yes. In my opinion, yes.

Q. And how about the Tito units? Would you regard those
units as illegal too?

A. I would like to say the following in this connection. Apart
from the two basic conditions which I have mentioned, the bands
never fulfilled the four well-known provisions of the Hague Con-
vention; i.e., unified leadership, recognizability from a distance,
carrying of arms openly, and adherence to the usages of war.
Also, the Tito units which were later on better organized in-
trinsically remained bands and were regarded as bands.

Q. Was the recognition of these units as belligerent units
ever considered?

A. Yes. It was considered. It was considered comparatively
early. By request of General Loehr, on the occasion of a visit to
the OKW at the end of December 1942, I mentioned this problem.
At the same time, however, I would like to add the following
which seems rather important to me. First, they remained
always considerations and motions of the highest military leader-
ship in the Southeast addressed to the OKW. I would like to put it
this way; it was a dutiful deliberation within our staff. The
subordinate commands and units could not have any choice in
this question at all. To them, as long as there was no other
decision, the illegality of the bands could not be doubted. The
other factor which seems important to me is the following:
These deliberations and these presentations to superior head-
quarters were always based on reasons of expediency and suit-
ability. We never had any doubt that a legal or international

1043

claim of this so-called enemy of ours could possibly exist. The
considerations of expediency and suitability were based on the
following ideas. We believed that through such a recognition —
at least in certain areas — one could possibly prevent the opponents
from using their methods which were incomprehensible to the
German soldiers and which could hardly be exceeded in their
cruelty. And secondly, we wanted to better the fate of those
German soldiers who had fallen into the hands of bands. This
consideration was an egotistical one. We believed that in this
manner we would be esteemed higher in our own OKW if this,
for the German troops, very difficult fight — with respect to dec-
orations and assignments mentioned in OKW reports, etc. —
could be put on an equal basis with fights in other theaters of
war.

Q. Did these representations to the OKW meet with success?

A. No. These repeated representations did not have any
success.

Q. Who had to decide on the question whether these bandit
groups were to be regarded as belligerents or not?

A. Such a decision, in my opinion, could only be made by the
supreme military and political authority of the German war
machine, certainly not the Commander in Chief Southeast.

* * * 3 c * * *

Q. Well now, something else, Witness, did you ever think during
that period about the effect which it would have if, because of
the insurrection movement, the army did not hold the position
in the Southeast?

A. Those were our daily worries. We realized completely that
on the whole, even at the end of the actual fighting, the impor-
tance of the southeastern theater of war had remained the same
as before, as I said recently, as the large southern flank for the
Russian theater of war, as a road to Africa, and as an airbase
for the air operations in the eastern Mediterranean.

Q. And then what did you think was necessary in order to
have the situation in the Balkans endangered by the insurgents;
you already briefly referred to this before on Friday?

A. The Armed Forces Commander Southeast was principally
of the opinion that the combating of the insurgents should, if
possible, be carried out at once by military means.

Q. Did you think it also possible that by increasing the troops,
reprisal measures would be quite superfluous?

A. No. It wasn’t as simple as that. The reprisal measures
remained dependent entirely on the attitude of the population.
By increasing the troops we wanted to insure that the insurgents

1044

would be crushed from the very beginning, and we also wanted
to achieve by this that the mopped up and pacified districts could
be occupied as far as possible. We could then hope that the
population would not be so easy to win for illegal actions, and
then, seeing their peaceful attitude, the occupation troops would
no longer be forced to take reprisal measures.

Q. And did one take reprisal measures because one had too few
troops?

A. No. I just said that the reprisal measures depended alone
on the attitude of the population, but even if there had been more
troops, individual sabotage acts or other senseless actions of an
incited population could possibly have occurred which demanded
reprisal measures.

Q. And then do I assume correctly from this that you are of
the opinion that retaliation measures under certain circumstances
are unavoidable with no regard as to the equipment and strength
of the troops?

A. Yes. That is correct. That was my opinion. And it is
substantiated by two facts, which, however, do not concern the
southeast area; first of all by the fact that in May 1945 in Berlin
retaliation measures were threatened in case of attacks on Rus-
sian soldiers, and where it is stated that apart from the perpe-
trators, as a rule, 50 Nazis will have to pay with their lives for
the attack on one Russian soldier, and another case I know is
that in the agreement between the Commander in Chief of the
Allied Forces, General Eisenhower, and Marshal Badoglio at the
end of September 1943, there was one provision which stated that
the Allies reserved themselves the right, if the agreement was
violated, to carry out special measures among other things, occu-
pation of other territories, but also punishment, for instance,
punitive actions carried out by aircraft, and other measures. And
I think that both occupation troops, the Russians in Berlin in
1945, as well as the Allies in 1943 in Italy, were not weak as
regards their numerical strength.

Q. Do you know whether the measures threatened by the Amer-
icans and by the Russians were carried out?

A. I hope that it was not necessary, and I think that the popu-
lation of these two civilized nations had enough understanding to
realize their duty towards the occupation powers not to cause the
respective commanders in chief as much trouble as the population
in the Southeast caused us.

Q. Now, I come back to the measures that you took to combat
the insurgents, which you thought were correct. We talked
already about the military fighting and the strengthening of the
occupation to combat the insurgents; in the political and eco-

1045

nomic sphere, did you see any possibilities there to quell the
insurgents?

A. Yes. The armed forces commander and later on the
Commander in Chief Southeast frequently in memoranda and
reports tried to transform the preconditions which partly were
responsible for the development of the restlessness among the
population. He made proposals for the adjustment of frontiers.
He frequently attempted to mitigate the inner political conditions
in Croatia, and to give the newly created Serbia clarity with
regard to its political future. Later on we proposed that Monte-
negro should be incorporated into Serbia. And here the very
intensive fighting against individual diplomats, especially against
Envoy Kasche in Zagreb [Agram], should be mentioned. Eco-
nomically, I would like to state the following : The attempts of the
High Command in the Southeast [were] to leave as many of the
products in the land, to exercise a little pressure in the restora-
tion and modernization of the factories and mines, and to give
as many workers as possible wages and food. Then there were
the permanent efforts to improve the railroad situation. Propa-
ganda measures also interested us very much, and this, of course,
was principally in the Southeast to get rid of the centralized ideas
which they had in Berlin where it was thought that the whole
of Europe could be worked from one single propaganda drum
beat. We were of the opinion that here the possibilities of the
area had to be taken into account and of course these are the
examples for such action.

Q. And were all these possibilities within your sphere of
power?

A. No, unfortunately not. They were essentially political de-
cisions which we could not make ourselves. We could only request
them.

Q. And now within your small possibilities did you try to make
things easier in the country, economically?

A. As far as we could do it ourselves, of course we did it.

Q. We now come back to the retaliation measures. Witness,
in the period about which we are speaking, that is the autumn of
1941, were definite quotas already ordered for retaliation meas-
ures, and by whom?

A. No. Before 16 September no ratios were ordered.

Q. And what did you think about the fixing of definite ratios?

A. My personal opinion was the following: It might be expe-
dient for definite districts and for limited periods that such ratios
should be fixed principally as a warning for the population, but as
I have already stated, it is necessary that every individual retalia-

1046

tion measure should be checked according to the circumstances
and a decision taken corresponding to the case.

Q. And did your commanders in chief order definite ratios.

A. No. As long as I was chief of staff in the Southeast, my
commanders in chief never ordered definite ratios.

Q. Witness, in military language at that time, what was under-
stood by the term “Communists”?

A. Communist partisans.

Q. And how was this interpretation arrived at?

A. At that time we knew about a directive of the Communist
Party in Serbia for guerrilla fighting; this directive contained
measures and provisions for the members of the Communist
Party in Serbia for such band fighting. ( List 202 , List Ex. J*6.) x

Q. Witness, it is reported in many reports that Jews were shot
as hostages; what considerations were taken into account here
for the fact that Jews were especially considered for hostages?

A. I remember that from the reports, principally in Serbia, it
was frequently seen that Jewish circles were behind the insurgent
movement through intellectual support, financial support, and
other kinds of help.

Q. In the Southeast, was there a Jewish extermination pro-
gram?

A. I never heard about such a program.

5jc :}C jji

Q. Now, did one have no misgivings in the office of the Armed
Forces Commander Southeast concerning the execution of such
orders? Just in this particular case a large number of people
had to give their lives.

A. We had thoughts of that nature at a prior time — extensive
thoughts — and I think that I already said quite a lot about the
treatment of the basic question when I talked about my discussion
with Keitel, etc.

Q. The number is 21, as can be seen from Document NOKW-
192, Prosecution Exhibit 78. 1 2 That is Boehme’s order. What
did the men think about that order?

A. During that time I, myself, did not lead any units, but I do
not believe that I am wrong if, from discussions with troop com-
manders of all ranks and all ages, I still have the impression
today that the men themselves demanded energetic measures
against this insurgent pest.

Q. Could you give an explanation for that attitude of the
troops ?

1 Parts of this document are reproduced in sections B and IV C and D.

2 Document is reproduced in section B.

1047

A. Such an explanation is very simple in my opinion. A mili-
tary unit that has occupational tasks and sees its military tasks
in the preparation of a prevention of an invasion, and an occu-
pation which wants to live in peace with the population and
above all a military unit which consists of men of older ages,
as was the case at that time in Serbia, and they were more pre-
pared for a peaceful life of occupation than for any other kind of
fight, such a military unit demands from its superiors an inter-
vention against surprise attacks, ambushes, and illegal actions
of all kinds for their own protection. And this is done from a
healthy attitude, such as soldiers of every nation would have.

*******

TRANSLATION OF DOCUMENT LIST 27c
LIST DEFENSE EXHIBIT 49

AFFIDAVIT OF THEODOR JESTRABEK, II AUGUST 1947, CONCERNING
THE KILLING OF GERMAN SOLDIERS BY PARTISANS

AFFIDAVIT

1, Theodor Jestrabek, Landshut, Bavaria, Papiererstrasse 2,
have been duly warned that a false affidavit on my part renders
me liable to punishment.

I declare in lieu of an oath that my statement conforms to the
truth and was made in order to be submitted as evidence to the
Military Tribunal at the Palace of Justice, Nuernberg, Germany.

After the conclusion of the Greek campaign the [headquarters]
staff of the 12th Army was stationed at Kyphisia near Athens.
I was the officer in charge of ration supplies for this staff; in
the same capacity I had already been a member of this staff since
1939, holding the rank of reserve captain at disposal [d. R.z.V.]
In September 1941, three soldiers of my group, namely Pfc.
Strelka, Pfc. Glaser (driver), both from Vienna, and Pfc. Wag-
ner from the Sudetenland, were dispatched on a truck from
Athens to Belgrade with the order to receive rations for the staff
of the 12th Army and to bring them to Athens.

The truck with the three soldiers never returned. After
searches lasting months and covering all district and garrison
headquarters concerned, my organization received, in the middle
of 1942 at Salonika where the staff had meanwhile been trans-
ferred, a report from the Kragujevac district headquarters,
stating :

“Having been loaded according to orders in Belgrade, the
truck with the above named three soldiers left Belgrade in

1048

September 1941 for Kragujevac. Owing to the already existing
danger from partisans the truck joined a convoy of sick sol-
diers. In the vacinity of Kragujevac the convoy was raided
by a column of partisans, part of it was separated from the
rest, and according to a report of eyewitnesses, who were able
to escape during the fighting, altogether 21 men, including
my three soldiers, were overcome, taken prisoner by the par-
tisans and carried away. After weeks of wandering, about
20 men, including a first lieutenant (medical corps) and my
three men, were finally stripped to their shirts, had to dig
their own graves, and were shot dead by the partisans. One
of the German prisoners succeeded in escaping just before the
execution. The data furnished by him to headquarters enabled
a German detachment later to find the place of the execution
and the graves, to identify the corpses beyond doubt and to
bury them in the heroes’ cemetery near Kragujevac.”

I still remember these events well, because in my capacity as
their former superior I had to report to the next of kin of the
killed men. I had two photographs of each grave. I attached
one of each to my letters of condolence, the rest I kept in memory
of the soldiers.

[Signed] Theodor Jestrabek

TRANSLATION OF DOCUMENT LANZ 36
LANZ DEFENSE EXHIBIT 41

AFFIDAVIT OF KLAUS GOERNANDT, 15 SEPTEMBER 1947,
CONCERNING ACTIONS OF GREEK "INSURGENT" UNITS

AFFIDAVIT

I declare the following on oath for submission to Military Tri-
bunal V in Nuernberg, and have been duly warned that I would
render myself liable to punishment if I make a false affidavit.

I. Ad Personam — My name is Klaus Goernandt. I was born
on 20 April 1914 in Berlin, am now living in Internment Camp 74,
Building 11-50, as prisoner number 211, in Ludwigsburg (Wuert-
temberg) after being released in Kaiserswerth near Duesseldorf,
Clemensplatz 10.

II. Ad Rem — The following statement refers to my official posi-
tion as supply officer of the 104th Light Division from February
until June 1944, as Quartiermeister of the 22d Mountain Army
Corps from June until the beginning of August 1944, and as a
battalion commander in the Delvine/Sarande sector (southern
Albania) from August until October 1944. The following details

1049

on the general situation in Greece became known to me from
orders of corps headquarters, daily reports from subordinate
units, daily reports from the corps and Army Group E, and from
conferences on my own staff as well as with the chiefs of staff
of Army Groups E and F:

1. The insurgent Greek units were divided into two bitterly
hostile camps, both of which, however, were trained and sup-
plied by the Allied side; the Nationalist group of General Zervas
and the Communist group of the Eam-Elas. Each had its own
sphere of influence, which — with the exception of the previously
mentioned German supply lines which crossed them — they had
completely under their control and organized according to their
own judgment. General Zervas was roughly in control of the
Igoumenitsa [Goumenitsa] Ioannina-Arta-Preveza area with the
supply port of Parga. The rest of the corps area was in Com-
munist hands.

Over a fairly long period of time agreements existed with
General Zervas , according to tvhich no hostile actions were to be
resumed between him and German troops. He broke this agree-
ment without any provocation by the Germans around June 1944
in the form of bloody raids.

The Communists attacked German bases and columns without
interruption. Focal points of their activity were the Korea area
and Lake Prespa [Prespansko] , the Greek-Albanian border terri-
tory, the Metsovon highway, the pass between Arta and Amfi-
lochia [Amphilokhia] , as well as the area around Lake Agrinion.

2. The mode of fighting and organization of the insurgents
were such that they conscripted the civilian population in the
areas under their control and mobilized them for their own pur-
poses. The male population was regularly conscripted for combat
service whether willing or not. Those who were not capable of
bearing arms had to serve as team drivers, scouts, etc. The
enemy staffs and supply camps were located in mountain villages.
A well developed telephone system quickly reported every German
movement from the outlying observation network to central head-
quarters and enabled them to take countermeasures at the right
time. It was possible to establish the fact that all manpower
within the insurgent territory was conscripted for the conduct
of the war. Hardly any distinction could be made between com-
batants and noncombatants, since the combatants lacked any
standard uniform and, as has been proved , even women bore arms.
The above description refers to the Communist areas. After the
capture of a village defended by the insurgents a kind of com-
munity diary was picked up as booty by our troops around June
1944 about 20 kilometers from Ioannina which showed beyond

1050

a doubt how the entire population was conscripted by force in
spite of strenuous opposition, and had to perform armed service
and take part in the fighting. The population, which was gen-
erally quiet and peace loving, was pressed into the battle by force
and had to build up their village into a stronghold against the
Germans. For our troops the situation was conditioned by the
fact that every Greek settlement away from the supply roads was
just the same as the enemy’s main line of resistance. It was
suicide to approach them. Even if the civilian population acted
under compulsion, nevertheless they obeyed and served the in-
surgents by treachery or active fighting. The insurgents were
in a position at any time to send women, children, shepherds, etc.,
into the vicinity of German bases without attracting attention,
who would report opportunities for raids. From their villages,
which were constantly being mentioned in our agents’ reports
as bandit nests, they would then break out with superior force
by surprise, frequently annihilate the base garrisons, and then
return to their camps. But in most cases we lacked the men and
necessary means, as mentioned above, to be able to carry out ener-
getic and successful countermeasures.

3. As the result of these methods of fighting used by the enemy
there were considerable German losses. Our losses for quite short
periods of time often exceeded, for example, the figures now
being given in the press on the British losses in Palestine in the
last few years. The army was bitter because it had to fight in the
dark against an enemy who claimed the rights of a noncombatant
in civilian clothes when the situation became critical.

Headquarters were alarmed because closing off the roads meant
starvation and the nonaccomplishment of our combat missions.
In many cases, therefore, they had to insist on the evacuation of
villages which were located near the roads, and had frequently
been proved to have been the starting points for enemy raids.
However, I emphasize that such acts of destruction were not car-
ried out during the time I was in western Greece, as far as I
know. But I knew the background story of many destroyed vil-
lages. Most of them were connected with the deaths of many
German soldiers. In order to interrupt the enemy’s activity in a
way that would be at all effective, headquarters endeavored to
break into the organizational centers of the resistance with
stronger forces and to destroy the insurgent units’ means of live-
lihood there. This meant carrying off or destroying enemy supply
stores, destroying their communications network, destroying the
principal bandit nests, etc. For this purpose special forces had
to be requested as each case came up, since our own troops were
not enough. Such major operations were carried out by calling

85)8964- ol— — 68

1051

in the 1st (Mountain) Division. For the civilian population this
type of warfare waged by the insurgents meant that they had to
live within the main line of resistance and take upon themselves
all the sacrifices which life in the immediate combat zone requires.

(1) As example of raids which took place in the corps area I
shall cite the following for the period from February to October
1944:

a. The narrow gauge railroad between Mesolongion and Agrin-
ion used by our own troops going on leave and for transporting
supplies, which could also be used for civilian purposes, was shot
at a number of times, two serious raids, as far as I remember, in
February and April 1944. In connection with this a fairly large
number of Germans was killed (I think I can recall 15 and 12),
destruction of the locomotives, and several civilians killed. The
train was packed with civilians.

b. Near Mesolongion, around June 1944, a German battery chief
did not return from a short walk in the vicinity of his battery
position.

c. Around May 1944, I myself was shot at with mortar fire in
the Agrinion hospital, which was situated away from any military
objectives.

d. Around July 1944, a veterinary company of the 104th Light
Division was attacked by night in Amfilochia and annihilated. I
recall about 60 dead men having been found.

e. An almost uninterrupted series of attacks on the pass be-
tween Amfilochia and Arta. Here my own car was twice burned
out. Considerable losses. Twice after such attacks I saw burning
Greek civilian trucks which had nothing to do with the German
armed forces.

/. The Regimental commander of the 1st (Mountain) Division
was shot dead from ambush in the autumn of 1943 between Arta
and Ioannina.

g. Annihilation of nearly the whole motor transport company
of the 104th Light Division by units of General Zervas on the
road between Ioannina and Arta around June 1944.

h. Annihilation of German convoys by units of General Zervas
around June 1944 on the Ioannina-Igoumenitsa road. Numerous
killed. Even an ambulance was also hit during the fighting.

i. Repetition of a similar attack not far from Igmunenitza.
Again, considerable losses. Corps veterinary [chief veterinary
officer] killed there. Time: about June-July 1944.

j. A number of serious raids on the Ioannina-Trikalla road.
Among them, several members of divisional staff of the 8th SS
Panzer Division were killed in the immediate vicinity of Ioannina
around July 1944.

1052

k. Uninterrupted raids, both small and large, on the Ioannina-
Florina road.

l. Around July 1944, an attack on telephone operators in the
Delvine area (southern Albania). Eight killed.

to. Around June 1944, raid on a German unit of platoon
strength south of Lake Vutrinto with high casualties.

These examples have remained fixed in my memory. They
could be extended at will if written records were available.

(2) I cite the following as examples of violations of interna-
tional law:

a. While on reconnaissance near Delvine (southern Albania)
I surprised some armed enemy observers behind a rock disguised
as shepherds (without flocks) and without any insignia resem-
bling a uniform, and took them prisoners. Time : August 1944.

h. A fishing boat with about 15 convalescents and men on
leave from my battalion was wrecked on the way to the base on
the open coast north of Sarande. The crew fell into the hands of
partisans and were shot after a summary court martial as a
reprisal measure, as was unanimously reported by civilians who
had escaped. Time: September 1944.

c. Well-directed fire by an English battery on my positions in
Delvine, as well as reports picked up by an observer, gave me
reason to suspect that the fire was being directed from Delvine
itself. Climbing by surprise up a high projection rock directly
on the edge of the town elicited brief machine gun fire and then
the flight of several civilians who had taken up a position on the
rock. Time: about September 1944.

d. A group of my battalion which was fired upon on open
terrain between Delvine and Sarande immediately attacked the
gun position. Result: fleeing civilians, one Italian machine gun,
and a basket of live chickens found in the gun position. Time:
September 1944.

I only remember these examples because they are from my own
experience. Similar reports were frequently sent in by the army,
but I have forgotten the details.

Ludwigsburg, 15 September 1947

[Signed] Klaus Goernandt

1053

TRANSLATION OF DOCUMENT LANZ 119
LANZ DEFENSE EXHIBIT 45

AFFIDAVIT OF KARLHEINZ BENSCH, 3 OCTOBER 1947, CONCERNING
PARTISAN FIGHTING METHODS IN GREECE AND SERBIA

AFFIDAVIT

Having been duly warned that I will render myself liable to
punishment if I give a false affidavit, I make the following state-
ment in lieu of oath, to be submitted to Military Tribunal V in
Nuernberg.

I. My name is Karlheinz Bensch. I was born on 4 June 1923
in Berlin, at present residing at 129 Allacher Strasse in Munich
54. I am a German citizen.

II. The following statements refer to my official position as a
platoon leader, or commander of a light company in the 1st Bat-
talion of the 734th Light Regiment (104th Light Division) which
during the period from winter 1943-44 until the end of the war
was committed in the fight against bands in Greece and other
Balkan countries.

The way of fighting shown by the partisans in Greece and
Serbia was in most cases treacherous and often cruel. In this
connection I give the following examples :

1. On 6 June 1944, the supply column of the 1st Battalion of
the 734th Regiment, moving through the “fields” at the northern
edge of the Metsovonbasin (town of Metsovon in Pindus), was
attacked from ambush ; the drivers were massacred or kidnapped.

2. During the summer of 1944, the base “Waldhaus,” located
in wooded terrain (east of Sigos Pass) and its forces — members
of the Penal Platoon Metsovon — who were working, partly un-
armed, on the road or in the forest were again and again attacked
in the same manner.

3. Usually the attackers could not be recognized as such since
they wore civilian clothes in most cases. 1 have noticed this, for in-
stance, to be a fact with all dead left behind by the enemy around
Christmas 1944, in the course of a relief operation in the area
south of Sarajevo. Parts of isolated units attempted at this occa-
sion to pass through the German units as civilians, in which they
actually succeeded too often.

4. Attacks and surprise attacks were not only directed against
German troops but also against native units and civilians. This
was reported in April 1944, among others, by residents of Korea
in Albania, who were deserters from Communist Greek units
from a town about 12 km. southwest of Metsovon — I do not re-
member the name any longer — who in July 1944 had been corn-

1054

mitted against a group of national units (Zervas) ; the same in-
formation was given to me by several Chetniks from the towns
located between Sarajevo and Trnovo in December 1944.

5. Following the restoration of communications to several
encircled German units in the area between the Sava and Drina
Rivers (near Bijeljina) in February 1945, I saw the corpses of
killed German soldiers stripped of their clothing.

6. The attacks by the insurgents were in the same manner
directed against objects which were of importance to the civilian
population. Thus, dynamiting of bridges and demolition of tele-
phone lines were repeatedly carried out in the summer of 1944 on
the road Ioannina-Trikkala ; the insurgents, following their occu-
pation of the towns around Vovusa — which is located about 25
km. northwest of Metsovon — ordered the confiscation of all food
supplies in August 1944 ; in September 1944 the entire cattle
herds of the natives were driven away from the fields and the
Bojassas Valley, and finally in August 1944 — always in accord-
ance with the reports of natives, some of whom I interrogated
myself — the residents of the villages located a great distance from
the German units between Krania and Grevenition were forced
to move out following the occupation of these villages by the
insurgents.

7. A diary, found on 19 March 1944 near Lithinon in the
Thyamis Valley, about 25 km. northwest of Ioannina, gives a clear
description of a “partisan company/' as the chronicler calls it,
during the period from December 1943 until March 1944.

The company (or the battalion?) with its command post was
in a major town west of the Sutista mountain (1300 m.) belong-
ing to the mountain range bordering the Thyamis Valley to the
west. I do not remember the name of the mountain range any
longer. The towns of Jeromnimi, Lithinon, and Vasulopulon
in the Thyamis Valley belonged to the company’s scope of com-
mand. The chronicler describes the manner in which the natives,
in some cases even emphatically, were called and trained for war
service despite the lack of equipment and clothing. Furthermore,
he speaks of political indoctrination and “that they were not quite
convinced of it yet.” Moreover he describes the first encounters
with parts of a German battery which was in Sitsa on the eastern
edge of the valley. I remember more precisely the description of
a surprise attack on an automobile convoy carried out during
the night of 8-9 March 1944 on the road Ioannina-Florina near
Negrades. The diary ends with the day on which the German
troops stormed Lithinon. I regret that I am unable to produce
it since I lost it together with my knapsack in March 1945.

1055

8. The following statements refer to the way of fighting of the
Earn or Elas units which were Greek Communist bands.

The Earn or Elas units wore civilian clothes in most cases;
only late in the summer of 1944 did I see that large parts of
them were in uniform. Corresponding to their way of fighting
they mostly carried their arms hidden. The tactics of the Earn
or Elas units consisted almost exclusively of surprise attacks; I
have rarely experienced an open attack (Kalantini, 20 February
1944). If they unexpectedly encountered strong resistance or
were attacked themselves, they retreated and avoided open fight
taking with them the killed and wounded.

The Earn or Elas units have, to my knowledge, attacked or
defended towns for military reasons. Thus, the towns of Nea
Kutsuphiliani and Metsovon, inhabited by German soldiers and
natives, were attacked in June 1944 and on 9 September 1944,
respectively.

The units of the insurgents only partly complied with the laws
of warfare; this, however, was not the case during the above-
mentioned attack on Metsovon in the course of which the attack
was mainly concentrated on the main first-aid station located in
the town. The location of the main first-aid station was evi-
dently known to them in view of the direction of the attack. The
Elas units also carried out reprisal measures. I know of the
arrests of natives as well as confiscation and removal of the entire
possessions from people who resided near my base in the Pindus
and came into contact with German soldiers regularly (according
to the reports of a person who escaped a few days later).

To my knowledge, an exchange of prisoners did not take place.
I herewith confirm that the preceding statements are correct.
Munich, 3 October 1947

[Signed] Karlheinz Bensch

EXTRACT FROM TESTIMONY OF DEFENSE WITNESS
DR. RUDOLF IBBEKEN*

DIRECT EXAMINATION

Dr. Laternser (counsel for the defendant List) : Will you tell
the Tribunal your full name?

Witness Ibbeken : Dr. Rudolf Ibbeken.

Q. Witness, will you please pause before answering the ques-
tion until the question has been translated, and then I will ask
you to talk into the microphone. Will you please spell your name?

A. The full name?

* The complete testimony is recorded in the mimeogrraphed transcript, 6, 7 October 1947,
pp. 3761-3836.

1056

Q. Only the surname.

A. I-b-b-e-k-e-n.

Q. When were you born?

A. On 23 July 1902.

Q. And where?

A. In Schleswig.

Q. What are you by profession?

A. Historian.

Q. What were you as historian?

A. Academical lecturer at the University of Berlin for modern
and ancient history.

Q. And what are you now?

A. I am in charge of an institute for tuberculosis in Hanover.

Q. Why did you change your profession?

A. After the collapse, I took up connections with the universi-
ties of Berlin and Goettingen and connections which today still
are in existence, but at the present time I do not want to return
to my old profession because the subject of modern and middle
history, on account of the German collapse, needs a reconsidera-
tion and review on the part of a German historian.

Q. Witness, I ask you to talk a little slower. What were you
during the war?

A. During the war, I was an officer with the rank of second
and first lieutenant of the reserve and I was employed to begin
with in France and subsequently in Russia.

Q. Up to what time were you employed as officer?

A. In Russia until 20 April 1942.

Q. And up until what date were you in frontline service?

A. Until the date mentioned.

Q. And why after that were you no longer at the front?

A. On that date, I was wounded by shrapnel, and I lost the
eyesight of the right eye, and therefore I was no longer fit for
front service.

Q. You lost the sight of the right eye?

A. Yes, my right eye.

Q. What did you do then? After you were wounded during
the war?

A. After I had been cured, I was appointed by Military Dis-
trict III to give lectures to the troops within the frame work of
the troop welfare program.

Q. On what subject did you give lectures?

A. The lectures were based on the knowledge of history and
dealt with the basic features of the German and European his-
tory of the 19th and 20th century.

Q. How long were you in that job?

1057

A. Until the end of the year 1943.

Q. And why did you not continue that activity?

A. In summer 1943, I gave a lecture in Bonn on the basis of
which a Party procedure on the part of the then Reich Organi-
zation Leader Ley was started against me. It was, however,
stopped by the Wehrmacht; and in a second clash at the end of
1943 with the office of Rosenberg there was a sharp difference
of opinion on the basis of which I was declared as politically
intolerable and unreliable and removed from my office.

Q. Who intervened on your behalf?

A. The chief of staff in Military District Headquarters III,
Berlin. That was Brigadier General von Ross who was informed
of my lecturing activity and about my clashes with the Party, and
I assume that he took my part and placed me under the protec-
tion of the Wehrmacht. He contacted the staff of the Commander
in Chief Southeast, and with the help of the chiefs of staff, Gen-
eral Foertsch and General Winter, he achieved my transfer to
the Balkans.

Q. What was then, subsequent to that, your activity during the
war?

A. Within the staff and by the staff of the Commander in Chief
Southeast, I was commissioned to develop an objective history
of the military historical conditions in southeast Europe during
the years 1941 until that time. That is 1944-45.

Q. Did you go to the Balkans for this purpose?

A. Yes.

Q. When did you arrive there?

A. At the beginning of the year 1944.

Q. To whom did you report?

A. I reported to General Winter, and in order to get more
closely acquainted with my commission I was sent to the Ic
[intelligence officer] Lieutenant Colonel von Harling —

Q. What was your commission?

A. My commission was to describe, on the basis of all the files
and material available to the 12th Army and Army Groups E and
F, the developments from the year 1941, up to the time of the
end of the war, and to base this on historical facts in order to
enable the responsible military authorities to hold such a descrip-
tion against any distorted descriptions — based on tendencies —
regarding this period.

Q. What was put at your disposal for this activity?

A. The files and documents of the 12th Army, of Army Groups
E and F, as far as they were still available with the staff, and as
far as they had already been sent to the army archives in Liegnitz.

Q. You already mentioned previously one of the purposes of

1058

your activity. That is, a historical description without any bias.
What additional purpose did your commission have?

A. The Ic, Lieutenant Colonel von Harling, and — during a dis-
cussion — General Foertsch and General Winter also supported
this idea; and they connected with my commission the intention
to create a kind of manual; and this manual was supposed to
serve the commanders who were acting in that area and to give
them an insight, I might say, into the completely abnormal condi-
tions in the Balkans which were difficult to see through by a
commander, a commander who came from a completely different
area to the Balkans.

Q. In what manner did you acquaint yourself with the condi-
tions in the Balkans?

A. I gained and collected local knowledge by staying in Crete,
in Athens, in Salonika, in Belgrade, in Zagreb, in the area of Brod
and Sarajevo, just to mention the most important ones.

Q. For this activity, did you bring with you historical knowl-
edge of the Balkans?

A. My general training in the field of history, of course, had
already at an earlier date acquainted me with problems prevailing
in the Balkans, but I do admit that general book knowledge and
purely scientific knowledge about the Balkans is inadequate in
order to gauge what went on in that area and what opposing
forces there were in that area.

Q. What were your first findings during the course of your
work?

A. I believe that the first thing I learned was that I found
myself confronted with a mix-up of forces which was hard to see
through and it took a great amount of study to see the historical
origin of this existing condition.

Q. What problems and conflicts were apparent in the Balkans
during the occupation time?

A. The number of simultaneously existing conflicts in the
Balkans is so large that I cannot say for certain that I am really
naming all the conflicts in full, and I therefore limit myself to
the most important tendencies within the area in order to at
least consider those factors which confronted the German occu-
pation force. I am asking now to be allowed to proceed geograph-
ically; so that, to begin with, I shall just go around the German
occupation area, and then right diagonally through it.

I shall begin with the region roughly around Zagreb [Agram] .
There we have the first great political difference — that is with
Hungary and Italy at the flanks; but we also find the decisive
contrast Zagreb, Belgrade that is — Croats against Serbs. Then
we go down along the Dalmatian coast and we find the century-

1059

old problem continuing into the present times — that is Italy and
the Dalmatian coast, the nucleus Trieste. Further south, we
find Albania which is the battleground of attempts of Italy to take
influence, attempts of Greece and England to take influence; and
further south yet, towards Greece, we have the sphere of influ-
ence of England in contrast to Italy. Then we will turn around
to Salonika and we find the complicated sphere of influence of the
Bulgarian tendencies — that is, the Russian tendencies backing
them.

And in the nucleus itself, I only recall to you the aliveness of
Macedonian nationalism and I shall recall to you the border
area between a Greek and Bulgarian conflict for the influence in
the area Salonika-Aegean ; and now we shall close the ring in
pointing out the taking of influence of Bulgaria in the Serbian
area which again led to a splitting of even the lowest classes of
the country because the sympathies of the population here as in
all other areas mentioned were unstable and followed whatever
influences were prevailing on the part of the major powers.

I will show you this rough description of the conflicts in the
Serbian area and in the southeastern area generally. I shall
now turn to a picture of the Serb-Croat area; we see there a
further mass of conflicts which only make it understandable that
down there it was not a question of one conflict concerning the
population on the one side and German armed forces on the other
side, but that instead, within that one war, I might almost say,
there was an enormous number of individual little wars within
the country and I shall now mention these factors.

Q. Witness, before you mention these factors, I again have to
ask you to make your sentences shorter. Now will you please
continue?

A. Perhaps the most bloody conflict which existed in the coun-
try itself was the one between the Serbs and Croats, borne by
the two organizations of the Ustasha on the part of the Croats
and the Chetniks on the part of the Serbs. Simultaneously there
was the fight of the Chetniks against the Italians. Simultaneously
there was the fight of the Chetniks against the Moslems, and at
the same time a fight by the Albanians against the Montenegro-
Serbians. I believe with this figure of the existing conflicts, I
have described roughly what forces there were pro and con in
that area, but I have only shown up those larger groups which
bore a name.

It is a significant factor of the conditions in the Serbian area
during the time of the occupation that the so-called partisan
activity was by no means bound to any groups and organizations
which can be named, but it was a typical factor of the partisan

1060

activity that they existed independent of organizations, indepen-
dent of any order, that they were in a position to appear at
numerous spots in the country just because there was no organi-
zational leadership and that fact made it nearly impossible for
the occupation powers to get hold of them.

Q. Witness, you were just talking about the partisan move-
ment. We will later come to certain details. I had just asked
you what problems and conflicts prevailed in the Balkans. You
named first of all the conflict between the Serbs and the Croats.

I now ask you to tell us some more problems and conflicts, and
after you name them we shall try to come to some details. What
further problems were there in the Balkans?

A. Apart from the natural difference between a country and a
foreign occupation force, and apart from the natural contrast
between the Serbs and the Croats, which I have already men-
tioned, I can further name the conflicts which arose from these
spheres of influence of the great powers, but in order to under-
stand conditions in the Balkan area, it is in my opinion of decisive
importance that one realize that all the acute indifferences had
a deep historical root.

I am talking about the struggle between the Greek Orthodox
sphere of religion and the Roman Catholic one. This area is the
sphere of the clash between east and western Europe, and this
clash is not merely a matter of the intelligentsia but in a rather
peculiar manner this clash leads — I might almost say — to the
development of the character of the men in the Balkans because
to have the Greek Orthodox faith is almost the same as to be a
national Serb. Religious belief got completely tied up with
political national conviction and out of this religious root comes
in the whole struggle of the Serb nationalism, the incredibly
strong fanaticism.

Quite similar is the case of the Croats who as Roman Catholics
also feel politically segregated as well as religiously segregated.
These historical causes which have an effect on the individual
person in the Balkans had also gained strong political weight
through the fact that with the Greek Orthodox faith the feeling
of a pan-Slavic connection had for centuries gradually developed
like a mass of larvae from southeast to northeast and has pushed
forward and, politically seen, developed the difference between
Zagreb and Belgrade during the course of the centuries. This
extremely increased controversy prevailed just at the moment
when the German occupation force was in that area and through
the fact that Yugoslavia as a state was defeated and through
the fact that the majority of the weight was transferred to
Zagreb; the national pride of the Serbs was severely hit — from

1061

a certain point of view, historically seen, rightly so, because for
centuries the Nationalistic Serbs have shown themselves to bo
politically more gifted than the Croats who did not understand
during the course of the last few centuries how to create a real
state. Now, however, at the time when the German occupation
power was in that area through the preference of Zagreb and
through the instrument of the Ustasha which was available there,
the political-religious contrast to the Serbs was sharpened so much
that a defeating or an abolishing of these conflicts — 1 don't want
to make any judgment here, I am not justified in that — constituted
a conflict for the German armed forces.

Q. What national-political problems existed in the Balkans?

A. If the religious-political contrasts of the Balkan area at that
time had been restricted to the territorially limited areas, then
the conflict would not have been so sharp. The danger is to be
seen in the fact that the hostile parts of the Serbian population
lived mixed up and were forced to live that way. I ask you to
allow me to make a comparison. If one took a handful of salt
and mixed it with a handful of sugar and then tried to separate
the two things again, it is just as impossible to do that as it is
to disentangle the mixed-up parts of the population on the
Serbian-Croatian map.

Q. Witness, if I have understood you correctly, there was the
difference on the one hand of the population and on the other
hand the occupation powers; then the religious problems, Greek
Orthodox and Roman Catholic; the Serbs confronting the Croats;
then the different spheres of influence of the great powers which
met there. Now, what could be especially felt at that time during
the occupation?

A. The decisive influences in the whole sector were without
question the successes of the Tito organization. Here, too, one
could make a false conclusion if at first glance one regarded the
successes of this organization as the success of a Communist revo-
lution. Long dealings with, and our knowledge of, all the notes
about the Tito organization must lead to the conviction that here
we are probably first faced with a sentimental love upon the part
of the Slav nations to Mother Russia. At the moment it doesn't
matter whether it is Communistic or anything else. The decisive
factor was the feeling of common sentiment towards that great
Russia that was now also a belligerent power and was able to
fill the Slav nations with hopes.

Q. Witness, all the things which you have mentioned here, if
I understood you correctly, were the main problems which con-
fronted the occupation forces.

A. I believe that I have named them as completely as possible.

1062

Q. You mentioned first of all the relationship between the
population and the occupation forces. How was that relationship
in Serbia?

A. I can testify less about the relationship regarding the
lower troops in the country because I didn’t come to the Balkans
until later, but from my knowledge of the files I ascertained a
very impressive fact — a fact which impressed me deeply at that
time — and that is that during the early period there was a kind
of expectant and not really hostile attitude on the part of the
Serbs towards the occupation force and that as a second phase,
I might say roughly about 2 months after the end of the campaign,
the German leadership in the Balkan area suffered almost a shock
when suddenly and not recognizable in its connections on numer-
ous isolated spots in the country there seemed to be an insurrec-
tion and revolutionary movement which, however, in the begin-
ning only found its expression in individual, little enterprises by
small bands. I believe at that time Field Marshal List was the
person who as the first in a discussion ascertained that that
couldn’t possibly be unorganized activity; behind all that there
had to be a central leadership. Actually, such a central leader-
ship, as far as I remember, at the earliest, 6 months after the
end of the campaign, was found and was more clearly recog-
nizable in the person of Mihailovic. However, one did see that
the numerous individual partisans gradually joined into smaller
units although it was not possible to connect all these little organi-
zations to a central leadership. I especially mention in this con-
nection that Mihailovic did not succeed to the very last day in
establishing real discipline among his followers. Instead, in addi-
tion to the many little wars mentioned within the country, there
were struggles of the leaders of bands against their alleged leader.
In order to clarify this, my statement, may I emphasize that this
bad cooperation between the bands was the consequence of the
character of the Balkan people. They are all individualists and
they are gifted. All these band leaders were led and guided by
the idea, eventually, to be the leader. Everybody had their own
policy, and it was the great achievement of Tito to be the first to
create a real comprehensive organization on the background of
this half-Slav, half-Communist ideology.

Q. What were the methods of these bands?

Mr. Fenstermacher : Your Honor, please, I object to the
question. I don’t think this man has been qualified to know what
the methods of the bands were. I think he is testifying to certain
conclusions which he draws from the documents he has read and
not to anything he himself knows personally.

1063

Presiding Judge Carter: I suppose he ought to state the basis
of his information.

Dr. Laternser: That would have been the next question,
Your Honor.

Witness, I have asked you about the methods of the bands, and
will you now, please, name them to the Tribunal, and at the same
time tell the Tribunal where you gathered your knowledge?

Witness Ibbeken : At the beginning of my examination I
stated that I had seen the records of the 12th Army and of Army
Groups E and F, and that to my knowledge these documents form
the bulk of all the available material in the headquarters of the
army and the army groups, and that these documents also form
the basis of my testimony.

Dr. Laternser: Now, on the basis of these files what did you
personally ascertain about the methods of the bands?

Mr. Fenstermacher : I object to the question. I don’t believe
this man is competent to testify to the questions he is being asked.
He is asked to state his conclusions from certain material which
he has read.

Presiding Judge Carter: I think we had a similar situation
when the Greek correspondent testified. He gathered informa-
tion in the same manner and testified to it here.*

Mr. Fenstermacher: If you please, Your Honor, that man
went back and forth and participated in battles, fired guns, and
was an assistant to the commander in chief, and participated in
what he testified to. He had personal knowledge of the jump to
which he testified.

Presiding Judge Carter: I think that is true to part of his
testimony but not to the whole of it. I think the testimony will
be admitted for what it is worth.

Dr. Laternser: Witness, I had asked you about the methods,
did you yourself look at any documents which might have shown
the methods of the bands, above all did you see pictures, did you
read reports; will you tell us something briefly about all this?

Witness Ibbeken : In the documentary material mentioned,
there are numerous reports about the methods of fighting of the
partisans in such an abundance that somebody who for a year
and a half studies these figures, for the period from 1941 to 1944,
at least gains a file knowledge of these facts, and beyond that I
can only personally state that to land with an airplane in the
occupational area Zagreb would generally be in this way : As soon
as one wanted to alight from the plane there would be machine

* Judge Carter refers to the prosecution witness Costas Triandaphylidis, a Greek newspaper-
man, who testified concerning the conduct of the partisan units serving under Colonel Zervas
and of the Edes organization. His testimony may be found in the mimeographed transcript,
15-18, 20 August 1947; pp. 2071-2175 and 2339-2362.

1064

guns from the partisans all around, and they would shoot until
German antiaircraft guns quieted these guns, and then one would
land.

Q. Did that happen to you personally?

A. Yes. And from personal knowledge I could personally say
that during the time when I was in the Balkans, and repeatedly
after I went home to the Reich to work in the archives, it was the
regular situation that in each leave train a combat force was
formed in order not to be surprised during sleep by partisan
attacks. Those were matters of course to us.

Q. Witness, did you see pictures, photographs, which showed
mutilated German soldiers?

A. The documentary material mentioned contained a consider-
able number of photographs which showed mutilations. The
photographs which I remember concerned first of all atrocities
between the fighting parties of the population, that is, Ustasha
against the Serbs, and the Serbs against the Moslems. The pic-
tures were submitted so often down there that finally one just
pushed them aside, because they are not a very pleasant sight,
but there is one detail I want to mention. Among the documen-
tary material of the staff of the division stationed in Sarajevo
in 1942 — these must be pictures which were submitted to the divi-
sion judge — these pictures showed murdered women who were
murdered by driving long wooden sticks into their genitals. Then
there were numerous other pictures, and I ask not to have to
testify about these, because I cannot give their sources exactly.

Q. Witness, we strayed from the actual subject. I had asked
you about the actual relation between the occupation powers in
Serbia and the population; what was the attitude of the officers,
as far as you knew them, towards the Serbs?

A. I knew the officers of the staff of the Commander in Chief
Southeast, and I was mainly interested in the political problems
of the area. It was the constantly expressed opinion of these
officers that the Serbs were the most remarkable and most gifted
elements in that area and nobody really trusted them very far.

Q. What now were the relations between the occupation power
and the population in Croatia?

A. This relation was completely different from a political and
military point of view. It had to be different because Croatia
was an independent state where the German armed forces, to put
it quite briefly, had nothing to say. In Croatia, under the head
of the state, the Poglavnik, who had come [back] from Italian
immigration [exile] —

Q. What does the word “Poglavnik” mean?

A. It means head of state, leader.

1065

Q. Who was it at that time?

A. It was Pavelic.

Q. Will you spell the name?

A. P-a-v-e-l-i-c.

Q. Now, will you please continue in the description of the rela-
tionship toward the population?

A. There was no considerable relationship with the popula-
tion, not to the same extent as in Serbia. Croatia was an inde-
pendent state. It was not exposed to the hands of the German
armed forces; instead, it was exposed to the hands of the Ustasha.

Q. What kind of an organization do we have in the case of the
Ustasha?

A. The Ustasha is in its nucleus, a body guard of the Pog-
lavnik ; let us say, a Fascist military organization which has half
the character of a police unit, too.

Q. Was the Ustasha the only Croat bearer of arms?

A. No.

Q. Who else carried weapons there?

A. The Croats tried in the Domobrans to establish a kind of
armed force, without the comparison really being exact in detail,
one might compare the relationship between the Domobrans and
the Ustasha as the relationship between the SS and the armed
forces in Germany. I don't know whether I may say that just
as there was a continued difference between the SS and the armed
forces, there was a continued difference between the Ustasha and
the Domobrans.

Q. To whom were the Domobrans subordinate?

A. The Domobrans were subordinated to the Croat Ministry
of War. But to this problem of the Domobrans I wanted to
make a decisive statement; they supplied the partisans with
weapons.

Q. How?

A. In going over to the partisans almost like regiments with
their leaders, and their guns were fired against us.

Q. And that applies to Croatia, what you said just now?

A. I beg your pardon, I said almost like regiments, in order
to be absolutely based on the material available to me, certainly
in the size of battalions.

Q. Now, what you have stated about Domobrans and Ustasha
applies to the sphere of the state of Croatia?

A. Yes.

Q. Now, about the Ustasha, to whom were they subordinate?

A. To the Poglavnik.

Q. And what were the methods of these Ustasha, and whom
did the Ustasha fight?

1066

Mr. Fenstermacher : I wish to object to the question as not
being covered by the indictment, and there is no charge at all
brought by the prosecution as regard the activities of the Ustasha.
I object to the question on the grounds that it is irrelevant and
immaterial.

Dr. LaternseR: Your Honor, the defense maintains the point
of view that the conditions in the Balkans are of decisive impor-
tance, because these conditions explain the measures which had
to be, or which were, ordered by the military authorities; the
total conditions which the prosecution describes as though they
were normal European conditions. I have the duty, as defense
counsel with the means at my disposal, to prove to the Tribunal
how the conditions in the Balkans actually were at that time, and
the Ustasha belongs to the whole problem.

Presiding Judge Carter: The objection will be overruled.

Dr. Laternser: Thank you.

Witness, I asked you about the Ustasha, and I had asked you
what method they used and whom they fought. Will you be
brief and clear on this subject?

Witness Ibbeken: The main opponents of the Ustasha were
the Serbs. The struggle of the Ustasha against the Chetniks
was the struggle of the Fascist Croats against the National-
minded Serbs, and finally, the struggle of the Ustasha against
the Chetniks was the struggle of the Orthodox against the
Catholics.

Q. What methods did the Ustasha apply?

A. Balkan methods, partisan methods.

Q. What do you mean by that?

A. Although they were an organized unit, they did not refrain
from committing cruelties, cruelties which became known to us
of the unorganized partisan groups. Through this, they made
extreme difficulties for the German occupation, because, after all,
the Ustasha was the instrument of the Croat Government, recog-
nized by us, and of course all of the things which were committed
by the Ustasha were put to our account as the political sup-
porters of Croatia.

Q. Do you know whether the armed forces authorities tried to
intervene against the Ustasha methods when they became known,
or whether they tried to cause the Croat Government to take
influence on the Ustasha?

A. I refer to the extensive correspondence between General
Glaise-Horstenau, and the Commander in Chief Southeast, which
dealt with all of the Croat problems and with all Ustasha prob-
lems. These reports by General Glaise-Horstenau were one con-
tinuous complaint, and one continuous begging to free the German

893964—51 69

1007

armed forces of the Ustasha and I know that the endeavors for
a restriction of the influence of the Ustasha went right up to the
highest German authorities on the part of the commanders in
chief in the Southeast.

I believe that one of the representations to Hitler personally
via the Reich Government was sabotaged by the Foreign Minister
Ribbentrop, and never reached the Fuehrer Headquarters; the
reason for this may well be that the German clinging to the
Croat position in the whole area was first of all the result of the
political tendencies of Foreign Minister Ribbentrop, and he and
the SA envoy, Kasche, supported this Croat Fascist system, partly
to the disgust of the armed forces.

Q. Witness, you have now shown us the relationship between
the armed forces and the Serbs, and between the armed forces
and the Croats; and you have already mentioned the difference,
the contrast between the Serbs on the one hand and the Croats on
the other hand. Of what kind were the differences between the
Serbs and the Croats, and how did they affect the conditions at
the time of the occupation?

A. Most sharply in the fact that the occupation power had no
uniform tendency and directness when fighting the partisans,
because the fighting activities in the total area were not clear cut
and directed merely against the occupation forces from the
opponents, but because there was fighting everywhere.

Q. How then, Witness, did the differences between Croats and
Serbs show up; what was the consequence? How, for instance,
were the Serbs treated in Croatia; and the other way around,
how were the Croats treated in Serbia?

A. I believe one must not separate Croatia and Serbia thus
sharply. Of course it was impossible for the Serbs to have a
politically leading position in Croatia and Serbia; on the other
hand there was a German occupation area. I am not quite clear
about the meaning of the question which was put to me.

Q. I wanted to know the consequences of the differences be-
tween the Croats and the Serbs in the occupational area. For
instance, during the occupation time did the Serbs remain in
Croatia, and what measures would the Croats take against the
Serbs, and the other way around?

A. During the course of the fights between the Croats and the
Serbs, and the Ustasha and Chetniks, and later during the course
of fights between Tito and Chetniks, and Tito and Ustasha, there
were movements of the population which were quite consider-
able. Whole parts of the country were thrown into unrest; later
they were torn away with the streams of partisans in the course
of big military operations, so that one can well say that this inner

1068

struggle between Croats and Serbs at least furthered the disso-
lution of the whole social structure of the country considerably.

Q. The Serbs and Croats speak the same language?

A. There is a strong difference in dialect, not a basically dif-
ferent language, but there is a very great difficulty arising from
the fact that the Serbs use Cyrillian handwriting, and the Croats
the Latin handwriting.

Q. You have already mentioned the Moslems during your
examination. What was the relation of the Moslems to the Na-
tional Serbs?

A. One does not have to see a very great difference in the
contrast between the Orthodox and Catholics on the one side,
and the contrast between Orthodox and Moslems on the other
hand. In both cases, the confessional, the religious contrast, has
taken on a political nature and thus found its effect in the Balkan
political differences.

If, on the basis of my documentary knowledge, I should draw
conclusions, I would say that probably the most cruel thing which
occurred in this Slav brother warfare was that it was carried out
at the expense of the Moslems.

Q. Witness, you further mentioned the various spheres of
influence of the great powers in the Balkans. I am not asking
you now for political opinions. I am merely putting the question
in order to establish a dividing effect on the population caused by
these spheres of influence. How, as an occupation power, did one
regard these spheres of influence?

A. The occupational power, through the existence of spheres
of influence of the great powers on these areas, was confronted
with the fact that the population of this area was now split into
even more parties, even more than it had already been split into,
on the basis of their own inner conflicts and of the differences
to the occupation power, because traditionally, the sympathies
of the Greeks are with Great Britain ; that is caused through the
old Mediterranean interests, but from the frontier, via Bulgaria,
the stream of the Russian influence in the Communistic form
penetrates, but that is by no means a free stream. I am talking
of the time of the occupation. In this movement there is a new
factor. While there is still a struggle between these English and
Russian attempts of influence, right in the middle there is the
old historical attempt of an independent nation, Macedonia. One
more conflict is added. The influence of Italy by way of Trieste —
Dalmatian Coast, Albania, made life difficult for the German
armed forces — more difficult probably than any other factor
caused by the great powers in those days. This influence played

1069

in the immediate military operations, where this influence led
to catastrophe.

Q. Witness, I would like to ask you what political interest
existed on the part of the Germans during the time of the
occupation ?

A. The German interest in the Serb-Croat area, or rather in
the whole area of southeastern Europe, consisted first of all in
the maintenance of the lines of communication between Zagreb
and Salonika up to Crete. There was further a strong political
interest regarding the war in the country, and the real political
interest was restricted and was comparatively small, because the
political prestige of Italy had been fixed in the course of German
policy. Only one direct political interest was essential and has
to be named, this is the fact that Germany, in spite of allowing
the Italians to retain prestige, still made a strong distinction
betweeen Italy and Hungary, and thus at least secured the politi-
cal entrance into that area.

Q. Witness, what effects were caused by the various spheres
of influence on the population of the Balkans?

A. This question I would like to answer by saying that the
area, as I stated yesterday, was inhabited by a great number of
various groups and political tendencies. All these tendencies
conflicting with each other had, of course, the one tendency to
find support and help from the outside in order to gain advantage
over the opponent in this manner politically, as well as regards
supply of ammunitions, etc. As a consequence we find in all these
groups and tendencies the inclination to lean on the great power
which is geographically closest, and thus to gain for their own
fight and for their fight against the occupation powers certain
advantages. As a consequence the answer of this question would
again include a circle around the whole southeastern area, which
I drew yesterday, and we would find that from Serbia, at least
during the first years of the occupation, there was a strong ten-
dency to keep contact away from Russia on the part of Mihailovic,
as the representative of Serbia. We could, at first, clearly see a
tendency to lean on England. The Tito movement again severed
connections and leans on Russia. The Greek insurgents were
divided in their political tendencies. The National Greeks looked
for support in England, and the Communist bands again leaned
on the eastern influence. The whole tendency goes towards mak-
ing the influences of the great powers useful to them and thus
leads politically and also practically to a splitting up of the whole
Balkan area.

Q. In other words then Witness, in these spheres of influence,

1070

did that result in a further division of the population in political
and other matters?

A. Yes.

Q. And now briefly turn to the partisan activities. How was
it possible in the Balkans that such a strong partisan activity
managed to exist; how do you explain that on the basis of the
experiences which you gained there?

A. The ethnic explanation for the strong appearance of par-
tisans in the Balkans again demanded action, and here again we
have a struggle of political wills which was fed by religious
sources, and therefore took on an enormously ethnic character.
The distinction of the partisan groups, the fact that the partisans
acted on their own initiative without any orders, the fact that
they turned out of the smallest villages, out of every isolated hut,
can be explained by the national character. The Balkans, espe-
cially the central area, the Serb-Croat area, partly until today
lives in the concept of a patriarchal order. By this I mean the*
family is the political sphere, where the man lives and thinks.
The smallest cells are the most important center to the simple
man in the street. The head of the family to him is the most
important authority he knows. An order by the head of the
family or by the head of a clan of about 50 to 100 people is
almost sacred. Such a head of a clan only has to say one word,
like for instance, “Tomorrow morning on the first motor car that
passes at a certain spot, stones shall be thrown,” and that would
be sufficient for this thing to be carried out on the next day.
And through the fact that orders are observed within a very
small circle it becomes possible that on numerous spots in the
country there are simultaneously attacks on the German troops,
which are disastrous. The partisans of the Balkans spring from
a population used to living with the idea of blood revenge. The
history of the Balkans during the last 500 to 600 years can
almost be regarded as a history of vendetta and party struggle.
But the large scale point of view which makes up the history of
a country or a state played a smaller part, and just because these
smaller parts refused to become states only through the fact that
they split up among themselves. There is only one exception
from this partisan activity, and I might almost say activity
without order, and that is Tito's Communist movement. That was
something absolutely new in the Balkan area. The fact that
Tito's partisans, for the first time, achieved a large scale move-
ment seemed significant to us, and that he overcame these divi-
sions and combined these numerous individual ideas under one
leadership. In spite of this feat in which Tito succeeded, and
which gave the partisans a slightly changed character, it did not

1071

mean a decreasing of the conflicts in the Balkans, but only a
sharpening. The stronger Tito's partisans became, the more
embittered the struggle became on the part of his people against
the Chetniks, Ustashas, and against the German armed forces.

Q. Witness, how about the training of the population as francs-
tireurs ?

A. This training is the product of centuries. The individual
partisans did not really need any training any longer. Partisan
activity is something of a tradition. It originated from a time
when these — historically viewed — unfortunate people were kept
in slavedom over centuries by the Turks. It goes back to times
when the so-called Heiduck [Haiduk] formed itself, and this tra-
dition is alive, in folk songs, in legends about heroes, in literature,
and in the whole political idea of the Balkan people.

Q. Witness, what you just said about the training, or one might
call it preparedness, to be francs-tireurs on the part of the popu-
lation — is that merely your opinion, or is this a scientific opinion
and a scientifically recognized opinion?

A. This statement, as all statements of mine, is based on two
factors. Not on my personal opinion, but first of all on the
thousands of documents which I described initially in my exam-
ination, and secondly, on scientific knowledge. I mention only a
few names where all the characteristics which I mentioned might
be examined and found. There is, for instance, the research of
Milkovic.

MR. FENSTERMACHER : I object to the second part of the wit-
ness' answer. I don't think he has been qualified as an expert on
scientific opinions with respect to the Balkan people. I think he
may testify to what he knows as a result of examining the docu-
ments, but not otherwise.

Presiding Judge Carter: I think perhaps we should have
some limitation on the examination, Dr. Laternser. Objection
sustained.

Dr. Laternser: Yes.

Let us then drop this particular point, Witness, and we will talk
about something else. Maybe we can touch what we have already
talked about again by the answering of one question. Was the
partisan activity a result only of the existence of the German occu-
pation power, or did the preparedness of the population for such
activities play an important part?

Witness Ibbeken: Certainly, every country is pushed through
a war into conditions which loosen up the generally existing order,
and such a loosened-up condition provided in the Balkans an im-
mediate occasion, or rather was used as an occasion, to release all
the various conflicts among the population.

1072

Q. Witness, how did it happen that partisan activity took place
on such a large scale basis; what were the reasons for this?

A. In order to be a partisan, weapons are needed. The man in
the Balkans is used to having his own weapons, firearms, and
bayonets. The partisans in the Balkans would not think — if there
is a poster to deliver up all arms — they would not think of really
giving them up. At that moment they only think of how to hide
their weapons even better. As a consequence, especially imme-
diately after a campaign in which the Yugoslav Army capitulated,
a great number of arms were dispersed over the country, and it
was a trivial thing for the population to hide these arms in this
area in the Balkans. It was feasible to do that every day, and
thus the guerrilla fighting started.

Q. Do you know anything about the extent of the supply of
the population in the area on the part of the Allies?

A. The files are full of reports about dropping of weapons by
planes.

Q. When was that dropping of weapons done, during the day
or during the night?

A. Without being able to answer this question exhaustively, I
am just giving some answers from memory from the file notes
which I read; I would say that weapons were most frequently
dropped during the night in the small localities marked by lights.
I have retained this impression because I memorized these re-
marks best.

Q. Where did these supplies come from?

A. As far as I know the German armed forces themselves did
not know that.

Q. Do you know whether the supply was effected by Russia
too?

A. I cannot make any statements about that.

Q. Witness, what then was the consequence of these lively
Balkan activities; the consequences regarding the occupation
powers?

A. The troops were desperate. At least during their first expe-
rience they felt helpless when confronted with this opponent.

Q. What opportunities were there for capturing the partisans?

A. First of all for geographical reasons, for instance five par-
tisans fought in a mountain area making an attack on a column —

(Recess)

Q. Shortly before the recess, I had asked you what possibilities
there were for the seizing of the perpetrators.

A. The geographical conditions were the worst possible, an
attack by a very small partisan group, by three, five, or eight
men in this mountain area demanded employment of troops of a
much larger number. If mountain infantry really reached the

1073

suspected spot, then the knowledge of the locality on the part of
the partisans and also their support by the population made it
almost impossible to catch the actual perpetrators.

Q. Can you give a practical example and describe to us that
which characterized the particular surprise attacks, which were
almost every day routine?

A. A typical surprise attack was the dynamiting of bridges,
rocks were dynamited and sent hurling down to the streets. One
has to take into consideration that there were only very few high-
ways in that area and how blasted sections were sufficient to
delay any larger countermeasures for a long period; sometimes
it was made impossible for a number of days.

Q. What did the troops expect?

A. Insofar as you mean by troops the common soldier, the ordi-
nary guard or a small command post of 10 men or even a com-
pany, I would say that these people lived in constant fear of
threat from ambush, and I can really only answer that question
on the basis of discussions with officers from the Staff Southeast.
These people again and again expressed the feeling, “just give us
anything so we can fight this menace.” Because normal military
measures were not able to cope with this abnormal situation on
the enemy’s side, or at least were not able to cope adequately
with it.

Q. What attempts were made by the occupation forces in
order to pacify the Balkan area?

A. To begin with I have to point to large' numbers of indi-
vidual operations by which it was attempted to fight the respec-
tive partisan attacks which I have already briefly described and
what difficulties had to be met. Besides, large military opera-
tions were attempted and it was also intended on the basis of
negotiations to achieve the pacifications of at least certain sec-
tors. These negotiations were not only based on the request of
the German armed forces but the opponents had the same desire,
and that applies especially to the Chetnik leaders. This desire on
the part of the Chetnik leaders to enter into negotiations with
German authorities was certainly not based on any special love
for the Germans, but rather on an emergency situation in which
the Chetniks found themselves, because they were simultaneously
fighting the Communists, and in order not to have to fight on
two fronts they often tried to at least arrive at a compromise, a
healthy compromise with the German armed forces. That one
could not put any faith in their proposal for negotiations is
obvious, because one had to expect at the moment when the third
opponent would withdraw to other areas, at the time when the
Chetniks were ready to negotiate, they would have an immediate

1074

opportunity to attack the German soldier from ambush. A further
factor which made the Chetnik negotiations more difficult can
be found in the fact that the individual band leaders were not
completely authorized by Mihailovic to negotiate with the Ger-
man armed forces. Mihailovic, which can be seen from the radio
addresses which were listened to by the German Intelligence
Service, gave very ambiguous directives to his subleaders. To
judge whether Mihailovic really meant it, if he admitted nego-
tiations in individual cases would be difficult, but regarding the
total impression of these negotiations one can say that all these
negotiations with the Chetniks because of the behaviour of the
Chetniks, did by no means represent a guarantee for the German
armed forces that after a few weeks the negotiator of today
would not be an opponent of tomorrow.

Q. Now, Witness, what was the relation to Nedic, who as we
know was at that time the head of the Serb Government?

A. Nedic and his system constituted the most essential attempt
on the part of the German armed forces authorities to achieve
the ends without military operations, without harsh measures,
but instead to build up a system of administration, of pacifica-
tion, and thus to establish law and order. The favorable opinion,
which existed in the staff of the Commander in Chief Southeast,
regarding the Serbs played an important part. There was a
certain antagonism against the Poglavnik, and I mentioned the
Ustasha yesterday. I don't think I am wrong if I say that the
Nedic system had for the Commander in Chief Southeast the
importance of being a stable factor in this mixture of conflicting
forces of the southeastern area. Therefore, one gave the Prime
Minister Nedic his own ministry; it can be said that the occu-
pying forces influenced this government, and that was in the
nature of things, but there were certain attempts to give Nedic
the possibility — to give Nedic Serbian forces in order to build
up an administrative machine in order to keep the Serbian area
peaceful and pacified.

Q. What was the success of these endeavors regarding the
partisan activities?

A. There was a considerable pacification and a considerable
decreasing of the partisan danger and it did not result from the
Nedic system. The police force which was put at Nedic’s dis-
posal was most unreliable and pacification of the country in spite
of this strong endeavor to build up its own national administration,
at least in the long run, was not achieved.

Q. And what was the result of this fact for the occupation
forces?

A. The occupation forces, because of the possibility of the

1075

seemingly increased dispersal of the partisan units over the whole
country, were forced to plan large military operations.

Q. What was the course then of the large scale military opera-
tions which you have just mentioned frequently?

A. A short answer to this question will have to be restricted to
the total measures of these operations. I assume that you did
not mean the question in this way, that I should describe military
operations.

Q. No, but tell us what importance these operations had for
the situation of the partisan activities?

A. The employment of German troops against larger partisan
units normally had the result that these partisans were com-
pressed to narrower sectors and in the course of planned military
actions their entire destruction would have been possible, if not
one factor almost automatically had to be admitted in all these
military operations. It was the task of the Italian troops to
cooperate with the Germans and to cooperate together with them.
Especially in the western sectors they had to achieve a certain
restriction of the area. It was tragic for almost all large scale
operations that the Germans managed to compress the partisans
in a comparatively small area as they managed to catch them,
but the Italians at the last moment opened the net and the par-
tisans could thus break through. There was no entire mopping-up
achieved of the fighting area, but all it meant was the fighting
area was transferred to another district, the troops lost men and
one had to attack yet another partisan unit.

Q. Dr. Ibbeken, we have now come to the end. All I want to
ask you now is, what were the aims in combating the partisans?

A. The aim of every fighting activity of the German occupation
forces was the securing of the supply lines, the pacification of the
country merely in order to be able to make use of the war poten-
tialities of the country. The aim of the military leadership was
to guarantee the mere existence of the troops in such an area
interspersed by partisans. Orders and measures had the aim to
give the military units the impression that they were not exposed
to the enemy helplessly, but that they had means to defend their
own lives in this area and that they could fulfill their larger
military tasks.

Q. At that time did you hear anything about the existence of
a tendency to exterminate them?

A. The question is a very strange and surprising one to me
because we have talked here about measures of military necessity,
and I wouldn’t know how, in an area which one intends to secure
and use economically, one can plan in such an area an extermina-
tion. I don’t see the motive for that.

1076

Q. Did you at that time hear, anything about an extermination
tendency towards the population, as is now being maintained?

A. In the 1 years of my activity with the Commander in
Chief Southeast, I ascertained almost scientifically how one can
secure and keep order in such an area, how one can bring order
into the chaos which existed there. The word “extermination”
was never mentioned and the thought never entered anybody's
mind.

Dr. Laternser: Thank you. I have no further questions.*
***** * *

* In addition to Dr. Ibbeken, the defense called another expert witness on Balkan history,
Dr. Georg Stadtmueller. Dr. Stadtmueller acted as an interpreter for the defendant Felmy in
Greece during the war. He testified mainly concerning Greek history and “band” warfare in
Greece. His testimony may be found in the mimeographed transcript, 9, 10 December 1947,
pp. 7420-7480.

1077

VI. TREATMENT OF CAPTURED MEMBERS OF
THE ITALIAN ARMY

A. Introduction

The charges of the indictment concerning the treatment of
captured members of the Italian Army are contained in count
three (pars. 11 and 12 i through l) . A number of contempora-
neous documents dealing with this subject have been compiled
chronologically below (sec. B). These documents are followed by
extracts from the direct examination of the defendant Lanz and
an affidavit by the defense affiant von Loeben (sec. C). This
defense evidence deals particularly with the execution of the
Italian General, Gandin, and some of his subordinates. Some of
the measures taken against members of the Italian Army after
the surrender of Italy to the Allies were taken pursuant to what
the Germans called operation “Verrat” [treason].

B. Contemporaneous Documents

PARTIAL TRANSLATION OF DOCUMENT NOKW-898
PROSECUTION EXHIBIT 317

KEITEL ORDER, 9 SEPTEMBER 1943, CONCERNING TREATMENT
OF ITALIAN SOLDIERS

[Stamp] Top Secret

[Handwritten]

New procedure in taking Italian prisoners of war

9 September 1943

2 copies — 1st copy

Administration [Crossed out in original]
Qu 2

10 Sept

[Illegible initials]

Armed Forces Operations Staff/Quartiermeister 2 (S)

36/60

Priority — Teletype

To:

1. Army Group B

2. Commander in Chief Southeast

1078

Commander in Chief West

4. Chief of Army Armament and Commander of the Replace-

ment Army

5. General Staff of the Army, Generalquartiermeister

6. Commander in Chief of the Air Force, Air Force Opera-

tions Staff

7. High Command of the Navy, Naval Operations Staff

8. General Armed Forces Office, Chief of Prisoner of War

Affairs

9. Foreign Office, Attention — Ambassador Ritter

10. Foreign Counterintelligence Office

11. Plenipotentiary General for Labor Allocation

12. Reich Leader SS and Chief of the German Police
Subject: Further treatment of Italian soldiers under German
jurisdiction

Italian soldiers who do not wish to continue fighting on the
German side are to be disarmed and considered prisoners of war.
They are to be taken over at first by the OKW/Chief of Prisoner
of War Affairs. In cooperation with the Plenipotentiary General
for Labor Allocation, the skilled workers among the prisoners of
war taken over are to be selected for the armament economy and
are to be put at the disposal of the Plenipotentiary General for
Labor Allocation. Further, in cooperation with the Reich Leader
SS, the fascists still among the prisoners of war are to be selected
and handed over to the above. All other prisoners of war are to
be at the disposal of the General Staff of the Army, General-
quartiermeister, and of the Commander in Chief of the Air Force,
Generalquartiermeister, in the proportion of 7 to 1 as workers
for the construction of the East Wall.

The selection ordered has to be carried out as soon as the pris-
oners of war are taken over, so that the camps will be freed for
new prisoners of war as quickly as possible.

The Chief of Prisoner of War Affairs will report the total num-
ber and their distribution to me every fifth day from 15 Septem-
ber onward.

Should the guards at the disposal of the OKW Chief of Prisoner
of War Affairs be insufficient for the task, the Chief of Army
Armament and Commander of the Replacement Army is to help
out on guarding with persons who have recovered from their
wounds or sicknesses, etc.

The transfer of English and American prisoners of war from
Italy is to precede the transfer of Italian prisoners of war.

[Signed] Keitel

OKW/Armed Forces Operational Staff
Quartiermeister 2 (S)

No. 005117/43 Top Secret

*******

1079

PARTIAL TRANSLATION OF DOCUMENT NOKW-1403
PROSECUTION EXHIBIT 319

EXTRACTS FROM ORDER AND TELETYPE FROM XV MOUNTAIN CORPS
TO SUBORDINATE UNITS, 11-12 SEPTEMBER 1943, CONCERNING
DISARMAMENT AND EVACUATION OF ITALIAN TROOPS

[Stamp] Top Secret

[Stamp]

Corps Headquarters, XV Mountain Corps
Quartiermeister No. 321/43, Top Secret

Corps Headquarters, XV Mountain Corps
la 769/43, Top Secret

Local Headquarters, 11 September [19] 43

17 copies — 10th copy

Subject: Carrying out disarmament of Italians
* * * * * * *

2. As a matter of principle the Italians are to be requested to
turn over immediately all their heavy weapons. If attempts are
made to delay, ruthless measures are to be applied with employ-
ment of dive bombers. If the occasion warrants it, the Italians
may retain their small weapons temporarily as protection against
bands.

9. Basic principle — Any open or attempted resistance is to be
broken by applying severe methods. Disciplined leadership of
return march by the Italians themselves, according to directives
of the division, is the. prerequisite for regular rations, otherwise
there is danger that they may starve to death.

* * * * * * *

[Illegible initial]
[Signed] Lueters

*******

[Stamp] Top Secret

Copy of Teletype

To:

SS-Division
114th Light Division

Teletype

[Initial] T 12/9

1080

For information: 373d (Croatian) Infantry Division

No shipping space available for evacuation of Italians and
supply via sea route. The Italian units in the area Split-Zara
are to be ordered to Bihac via land route immediately under the
responsible leadership of their commanders and their head-
quarters authorities pursuant to Corps Headquarters Ia/Quartier-
meister No. 769/43 Top Secret of 11 September. Severest com-
pulsory measures as well as reprisal measures are to be applied
in the event of refusal (shooting to death).
*******

114th Light Division and SS Division are requested to report
their intention immediately with time table and security pre-
cautions (for instance, commitment of tanks).

XV Mountain Corps, la No. 770/43 Top Secret 12 September 1943

Certified true copy :
[Illegible signature]

Captain, Cavalry

PARTIAL TRANSLATION OF DOCUMENT NOKW-916
PROSECUTION EXHIBIT 223

EXTRACTS FROM BASIC ORDER, 15 SEPTEMBER 1943, SIGNED BY
KEITEL, CONCERNING TREATMENT OF MEMBERS
OF ITALIAN ARMY

Supreme Command Armed Forces

No. 005282/43 Top Secret, Armed Forces Operational Staff/
Quartiermeister 2 (S)

Fuehrer Headquarters, 15 Sept 1943
[Stamp]

Top Secret

55 copies —
copy

[Handwritten] Quartiermeister 2 (S)
[Ellegible initial] 16
~9

Basic policy concerning the treatment of soldiers of the
Italian armed forces and of the militia

All previously issued orders concerning the treatment of
soldiers of the Italian armed forces and of the militia are here-
with rescinded and the following is ordered :

1081

I. Basic principle — Italian soldiers must declare unequivocally
whether they desire to continue fighting on our side or whether
they wish to participate in the breach of faith of the Badoglio
government. Whosoever is not for us is against us and conse-
quently he becomes a prisoner of war. (Irrespective of any
German citations of war he may have received.)

II. One must distinguish three classes of Italian soldiers, in-
cluding the militia —

1. Italian soldiers faithful to the alliance who —

a. Wish to continue armed combat on our side.

b. Wish to be employed in the order and security service, in
the supply organization of the armed forces units or with the
navy or the ground forces of the air force without, however,
actively participating in combat.

2. Italian soldiers who do not wish to assist us in any way.

3. Italian soldiers who have resisted either actively or pas-
sively or who have allied themselves with the enemy or with
bands.

* * sfc * * * *

To 2 above (Italian soldiers who do not wish to assist us in

any way). Italian soldiers who do not wish to be available to
continue fighting on the German side are to be disarmed and are
prisoners of war. The OKW/Chief of Prisoner of War Affairs
will take them over first. Regarding their sifting and distri-
bution for purposes of war economy, there is a special directive
in agreement with the Reich Minister for War Production and
Armament and with the Plenipotentiary for Labor Allocation.

To S above (Italian soldiers who have resisted either actively
or passively , etc.) Italian soldiers having actively or passively
resisted German measures or having allied themselves with the
enemy or with bands are also prisoners of war. The following
directives which are more severe apply to them:

a. By order of the Fuehrer, the following procedure is to be
applied to all Italian troop units who have let their arms fall
into the hands of insurgents or in any way made common cause
with the insurgents :

(1) The officers are to be shot to death by summary courts
martial.

(2) Noncommissioned officers and men are to be transferred to
the east for labor employment via General Armed Forces Office/
Chief Prisoner of War Affairs, and made available to the Army
General Staff/Generalquartiermeister, if possible avoiding transit
through the Reich.

b. An ultimatum with a short time limit is to be sent to Italian

1082

troops or other armed units still offering resistance at this time.
This ultimatum is to make it clear that the Italian commanders
responsible for the resistance will be shot as francs-tireurs unless
they have ordered their troops to surrender their arms to the
German units before the time limit expires.

III. Sifting — The following is ordered in order to relieve trans-
portation : Army Group B, CinC West and CinC Southeast are to
classify and to retain immediately.

1. Italian units continuing the fight on our side.

2. Individual Italian soldiers willing to continue on the German
side and who may be organized into new Italian militia units or
who may be employed as Italian voluntary helpers in German
troop units.

3. All Italian soldiers who are ethnic Germans. They are to
be collected at a camp to be installed in South Tyrol by Army
Group B for the purpose of later recruitment for the German
armed forces and Waffen SS.

4. Units and troops as well as individual Italian soldiers that
are in the air force or navy in the Reich, in the area of operations
or in the occupied territory, will remain available for the air
force and navy and are to be treated according to the foregoing
policies.

5. All other officers and men are to be evacuated to the Reich
in so far as Special Directive II, 3, comment to 3, is not applicable.

6. CinC South will transfer all Italian soldiers to Army Group
B, excepting Italian voluntary helpers. Army Group B is charged
with the immediate transfer of prisoner of war transports of
CinC South to the Reich.

7. All Fascists (i.e., members of the Fascist party) who wish
to cooperate further are at the disposal of the Reich Leader SS
at his request.

IV. Treatment of officers and higher staffs — Officers and
higher staffs who have declared their willingness to be committed
on our side according to II, 1 a and h or according to their
special qualifications but for whom there is no use at present are
to be kept in honorary confinement by the army group in their
corresponding areas. Proper billets (for instance in hotels to be
requisitioned) are to be secured. Until further notice they are
to be informed that because of the restless attitude of the
population and for their own interests they will be granted no
release for home even though it may be within the area of German
authority.

Chief OKW
[Signed] Keitel

Distribution :

[Not listed in original document]

893964—51 70

1083

PARTIAL TRANSLATION OF DOCUMENT NOKW-1354
PROSECUTION EXHIBIT 447

EXTRACTS OF DAILY REPORTS FROM COMMANDER IN CHIEF
SOUTHEAST, 19-28 SEPTEMBER 1943, TO OPERATIONS
SECTION, OKH

*******

To:

High Command of the Army

Army General Staff /Operations Section

Secret Daily Report from Commander in Chief Southeast for

19 September 1943

*******
Chief Administration Area Headquarters Salonika —

Engagement between our own reconnaissance and bands north
of Elasson. The attitude of the disarmed Italians has stiffened.
Several mutineers were shot.

*******

[Stamp]

Army General Staff, Operations Section

Received — 24 September 1943
No. 10229/43 Secret

*******

Secret

Daily Report from Commander in Chief Southeast for
23 September 1943

XXII Mountain Corps —

Final mopping up at Cephalonia is under way. General Gandin
and his staff were captured. [Crossed out] Special treatment
[Sonderbehandlung] in compliance with Fuehrer order.
*******

Commander in Chief Southeast (Army Group F), la, No.
2741/43 Secret, dated 23 September 1943.

[Stamp]

Army General Staff, Operations Section

Received — 27 September 1943
No.— 10354/43 Secret

*******

1084

Secret

Daily report from Commander in Chief Southeast
(Army Group F) for 26 September 1943.

*******
XXII Mountain Corps —

Corfu is firmly in our hands except for the mopping up opera-
tion necessary in the northern sector. Mopping up operation
proceeding on the Island of Ithaca (east of Cephalonia).

Enemy ammunition depot destroyed south of Korea, 50 bandits
shot.

*******

Commander in Chief Southeast (Army Group F), la No.
2789/43 Secret, dated 26 September 1943.

[Stamp]

Army General Staff, Operations Section
Received — 28 September 1943
No. — 10384/43 Secret

* * * * * * *

Secret

Daily Report from Commander in Chief Southeast for
27 September 1943

* ***** *
XXII Mountain Corps —

Cleaning up operations as well as transporting Italians away
from Corfu is proceeding. The commandant of the island was
shot.

*******

Commander in Chief Southeast (Army Group F), la No.
2803/43 Secret, dated 27 September 1943.

[Stamp]

Army General Staff, Operations Section
Received — 29 September 1943
No.— 10422/43 Secret

Secret

*******

Daily Report from Commander in Chief Southeast
(Army Group F) for 28 September 1943

*******

1085

XV Mountain Corps —

SS Division Prinz Eugen —

Survey on Split —

* * * * * * *

At Split 300 Italian officers and 9,000 men of the “Bergamo”
Division were taken prisoners. Treatment in compliance with
Fuehrer order has been initiated.
*******

Serbia — Draja Mihailovic bands active southeastern Serbia.
During our own operations 34 Draja Mihailovic bandits were
captured, 280 suspected followers of Draja Mihailovic were ar-
rested — [Crossed out] 10 Draja Mihailovic followers shot in
retaliation.

*******

Commander in Chief Southeast (Army Group F) la No. 2824/
43 Secret, dated 28 September 1943.
*******

PARTIAL TRANSLATION OF DOCUMENT NOKW-865
PROSECUTION EXHIBIT 452

EXTRACTS FROM MESSAGES AND ORDER OF 1ST MOUNTAIN
DIVISION, 18-24 SEPTEMBER 1943, PERTAINING TO
OPERATION "VERRAT" [TREASON]

[Stamp] Secret

595

24 September 1943
1130 hours

Radio Message — Priority

To Division Commander

The Corps informs — “By order of higher authority, no pris-
oners are to be taken during operation” “Verrat” [treason] .

1st Mountain Division
la No. 1231/43 Secret
[Illegible initial]

[Handwritten] 1747

Teletype Priority to Quartiermeister (1735)

24 September 43
1700 hrs

[Handwritten] Secret

1086

[Stamp] Secret

To:

1. 99th Light Mountain Regiment.

2. For information: Division Commander, Igumenica \_Gou-
menitsa ] Extra copy — lb, IVb.

1. For operation “Verrat” there will be brought up to Igu-
menica on 24 September evening — 1 Company of 2d Regi-
ment Brandenburg (South Tyroleans in Italian uniform and
with Italian arms).

* * * * * * *

1st Mountain Division/Ia
No. 1232/43 Secret
[Illegible initial]

[Handwritten] Ordered — 24 September

(1745) Baumeister IHV Quartiermeister XEIREI Ki

[Handwritten] War Diary

Division Command Post, 18 Sept 1943
1400 hours

1st Mountain Division
la No. 1195/43 Secret

[Stamp] Secret

Use care while telephoning — The enemy is listening
Divisional Order
For Operation “Verrat”

(No. 50)

(Map 1:100,000)

1. In the pursuance of treason, the like of which history has
never seen, which the Italian Government has committed against
Germany the Italian commander of Corfu decided to stop the
occupation of the Island Corfu by German troops by force of
arms. Since 13 September German planes flying over the island,
and on 13 September the Combat Group Dodel, which had put
to sea for the occupation of the island, have been fired upon.

Thereby the garrison of the Island of Corfu, which consists
mainly of the 18th Italian Infantry Regiment, has joined hands
with cowardly treason, and even beyond that, has gone over to
the side of our enemy in open combat. Details of the garrison —
see sketch. (Changes in the garrison are possible and probable).
*******

[Signed] von Stettner

1087

PARTIAL TRANSLATION OF DOCUMENT NOKW-830
PROSECUTION EXHIBIT 326

EXTRACTS FROM WAR DIARY OF XV MOUNTAIN CORPS,

26 OCTOBER TO 31 DECEMBER 1943, REGARDING
SHOOTINGS OF ITALIAN OFFICERS

War Diary No.

Corps Headquarters XV Mountain Corps [Stamp]

la

(Command authority, unit)

Started — 26 August 1943; concluded — 31 December 1943
*******

27 September 19 AS, Banja Luka — 0700 hours SS Division and
92d Motorized Regiment approached Split.

0800 hours reached northern edge of Split.

0900 hours city and port of Split occupied against local re-
sistance. 202 Italian officers and 9,000 men captured.

Italian officers are to be shot to death according to Fuehrer
orders.

Commanding General has caused investigation to ascertain
guilty officers.

*******

SO September 19A3, Banja Luka — Three generals in Split shot
to death by virtue of summary court martial.
*******

1 October 19AS, Banja Luka — 45 additional guilty officers
(Italian) shot to death by virtue of summary court martial in
Split.

*******

C. Extracts from Testimony of Defendant Lanz*

DIRECT EXAMINATION

*******

Dr. Sauter: Now, Witness, I come to the last individual count
of the indictment, dated 12 May 1947, as far as this concerns you.
It concerns the case of the Italian general, Gandin. With regard
to this case, in order to refresh your memory, I will show you the
report concerned.

* Complete testimony is recorded in mimeographed transcript, 19-21, 24-26 November and
1 December 1947, pp. 6320-6888.

1088

This is the report, Document NOKW-1354, Prosecution Ex-
hibit 447.* Have you got this report?

Now, please, would you state something about this incident?

Defendant Lanz: This was at the conclusion of the fighting
against the Italian division which was on the islands of Corfu
and Cephalonia after the Italian capitulation.

Q. And when was this?

A. This was the second half of September 1943.

Q. And before this incident, had you had anything to do with
the Italian capitulation?

A. Yes, my connection with the Italian capitulation was more
or less accidental. This was while I was in Athens at the be-
ginning of September 1943.

Q. That is before your arrival in the Epirus ?

A. Yes, immediately before.

Q. And the negotiations at that time which you had to carry
out in Athens — did they have anything immediately to do with
the case of Gandin on Corfu and Cephalonia?

A. Yes, they were immediately connected.

Q. And what did you have to do at the beginning of September
in Athens with the Italian capitulation? Witness, I am asking
you this question because at that time, as you told us yesterday
and the day before, you hadn’t yet had anything to do. You
hadn’t been in action.

A. Well, it happened like this. On 8 September in the after-
noon, I was in my billet in Athens and I heard by chance on the
radio about the Italian capitulation. Thereupon, I asked the ADC
[aide-de-camp] who was with me to ask the army group whether
I had anything to do with this matter at all, and I think it was
the chief of staff at that time who told me that it was possible
that I would perhaps be entrusted with the carrying out of the
countermeasures as planned in an order called “Achse” [Axis].

Q. Witness, and why were you entrusted with this? At that
time, you hadn’t yet been in action.

A. I asked myself that question too at the time, because in
itself I had nothing at all to do with these things, and also at
that time I expressly asked that if possible I would not be
bothered with this matter. Thereupon, I was told that shortly
I would be told something else about it.

Q. It still is not quite clear to me, General, why you concerned
yourself with the matter at all. From my point of view one could
perhaps say the matter didn’t concern you at all. Why then did
you concern yourself with the matter?

* Parts of this document are reproduced in section B.

1089

A. As a precaution, L tried to find out whether this whole
matter concerned me at all because, after all, this Italian capitu-
lation altered the whole situation and I had to tell myself that in
some way or other I would be concerned by this because I knew
that the army group intended, if the Italians left, to intervene
in my staff. Therefore, I was interested in it.

Q. And where were the other generals at that time, who had
been in action, and why weren’t they entrusted with this task?

A. If I was informed correctly, when the Italian delegation
arrived, and this, of course, was counted upon, the German
military commander was to carry out the necessary negotiations
with the Italians; but just at that moment, on this day, that
German commander was not in Athens — he was on an official
trip somewhere — and the Commanding General of the LXIX Corps,
stationed in Athens, was also not present there. I think he
was in the Peloponnesus, so I was the only one there. General
Loehr, my commander in chief, then told me on the telephone
that unfortunately he could not comply with my request and had
to commission me, as the senior general in Athens at the moment,
to take up negotiations with the Commander in Chief of the Italian
11th Army and to take to him the orders for the disarming and
surrender of the Italians.

Q. How did you cope with this request from your commander
in chief, General Loehr?

A. First of all I told the so-called German chief of staff
[Stabschef] at that time, who was the liaison officer with the
Italian High Command, to see me; also my own chief of staff;
and I discussed the whole matter with them which had come so
unexpectedly upon me. Thereupon, I asked the German generals
who were in Athens at that time and also the admiral who was
present to come to me, and I told them that the commander in
chief had just given me the order to conduct the negotiations with
the Italian Commander in Chief with regard to the disarming and
the surrender and that I wanted to discuss this with the, that is,
the gentlemen who were present then, and decide what was to
be done. In addition, I wanted to get some information about the
situation of the German troops and the Italian troops around
Athens because these things were rather unknown to me. Up
until then I had not had anything to do with them at all; until
then I had been living as a kind of private individual in Athens.

Q. And then, after this discussion with the German officers in
Athens, what picture did you get of the situation?

A. The impression I got was mainly that in Athens there were
very few German troops and very many Italian troops. In any
case, the ratio was approximately 1 to 5.

1090

Q. Then what did you do in order to carry out the disarming
and surrender of the Italian Army, which you had been ordered
to do?

A. I based my hopes on the fact that I would be able to settle
this matter peacefully with the Italian commander from the very
beginning. I was determined that any kind of dispute or even
fighting should be avoided. I told this to the army group too, and
I told them that in any case I would try to do my very best to
conduct this not very pleasant task in a friendly manner with
the Italians and to bring it to a successful conclusion.

Q. Did you also make preparations in case the Italian com-
mander in chief in Athens refused to surrender?

A. Of course we talked about that ; that was fairly obvious ; we
did not know what his attitude was. It was a very vague and
unclear situation — a very unpleasant situation. I ordered that all
the German troops in and around Athens should be prepared to
carry out further orders, and then I telephoned His Excellency
Vecchiarelli, the commander of the Italians.

Q. And then you thereupon probably visited the Italian com-
mander in Greece, Vecchiarelli, and then what happened?

A. I went to him with my chief [of staff]. The impression I
received I can never forget. The Italian staff headquarters was
strongly defended with barbed wire and fortifications, and ma-
chine guns and guards and a large number of officers were col-
lected in front of the building and inside the building. They
lived in the villa of the Greek Crown Prince. Of course, I was
greeted by Vecchiarelli ; I did not expect anything else. It was a
rather cool reception. I gave him the order for complete dis-
arming — all the weapons had to be given up and he had to
surrender; and I asked him to capitulate to us.

Q. How did the Italian Commander in Chief behave in the face
of this demand?

A. Of course he was rather shocked by this demand and he
made objections to it; mainly, and I remember this, he said the
complete disarming of his army would not be in agreement
with the honor of his army and therefore I should refrain from
this. He realized the situation and also realized that he had to
surrender to us, but disarming would be too harsh. Thereupon,
of course, followed a discussion and during the course of this
discussion, after we had learned to know each other a bit,
Vecchiarelli then suggested to me, on his own initiative, that he
would go on fighting, on our side, and that, therefore, the dis-
arming would be without point, that is, his surrender and his
capitulation to us. He obligated himself to go on fighting as
before, but on our side.

1091

Q. But did the Italian Commander in Chief say anything, per-
haps, about what would happen if this suggestion was not agreed
with?

A. He mentioned, during the course of this discussion, that if
I insisted on a complete disarming, then there would be a pos-
sibility that the Italians would oppose this and there would be
fighting. He stressed again and again and asked that his soldiers
be allowed to keep their guns.

Q. Then what was your reaction to this suggestion of the
Italian Commander in Chief, Vecchiarelli?

A. The situation was, of course, not very simple for me. On
the one hand I had my order to demand a capitulation of the
Italians; on the other hand, Vecchiarelli made the proposal to
me that he wanted to go on fighting, on our side; and I was in
the middle. Just try to imagine the situation — everybody was
standing around and waiting for something to happen. Since it
was my determination to come to peaceful and friendly conclu-
sions with the Italians, and at all costs to avoid fighting and
hostilities with the Italians, I said to him — “Well, if my army
group agrees to that, which, of course, I do not know beforehand,
then, Your Excellency, I agree with your proposal, that is, that
you go on fighting on our side”. I was of the opinion that
that actually was the best solution. Thereupon, the faces around
me were rather relieved and Vecchiarelli, of course, was pleased
about it. I was too, and in the conviction that right had been
done, I took my leave. That was about half past 12 or 1 o’clock.

Q. When was that?

A. That was in the night, 8-9 September, about half past 12
or 1 o’clock.

Q. And then what happened further during this night? Did
you report to the army group?

A. I then called up the army group, of course, and first of all
told the chief of staff who was there and who came to the tele-
phone, that I had done this and this. I did not know whether
I was going to get praise or censure. He said that that was not
the task I had been given. He did not think that the commander
in -chief would agree to my measures. Shortly afterwards, Gen-
eral Loehr came to the telephone and I reported to him. He
rather attacked me and asked me very harshly how did I come
to alter this order which had been given to me, to act on my own
authority, and to oppose the order of the OKW. He could in no
way agree to this. Then I answered that I had hoped that was
the best way. That otherwise there was a danger there that
fighting would take place with the Italians — there was a pos-
sibility; and I thought that I had done the best thing that could

1092

possibly be done. My objections were without success and Gen-
eral Loehr was very harsh towards me and told me, “I order that
the agreements which you have made should be rescinded at
once, and that you carry out the orders I have given you, that is,
the Italian 11th Army is to be immediately and completely dis-
armed and is to surrender to us”. That was the essential point
of what he said to me.

Q. So thereupon you received again the same task which you
had received before. Then what did you think about this new
commission? Did you want to carry it out or did you want to
remain by your, let us call it, disobedience? What was your
intention then?

A. First of all I was very angry, of course, over the fact that
my good intentions had gone awry. Thereupon, I talked with the
gentlemen and told them what the commander in chief had or-
dered me to do and told them that they must, of course, prepare
now for fighting with the Italians, which was extremely unde-
sirable, because of the population. I asked them about their
opinions as to what one should do in such a situation but they
did not know either what to say.

Q. Witness Lanz, you have just said that you talked about this
to “the gentlemen”. Were those the German generals present in
your billet, whom you have mentioned before?

A. Yes; there was the German liaison officer with the Italian
High Command and then there was my own chief of staff, who is
now in Russia — I do not know whether he is living or not — and
then there was the Commander of the 11th Air Force Division,
General Drum. He had some of his own troops in and around
Athens. Then there was a Brigadier General Holle; he was a
commander of the air force which was in Athens ; and then there
was Rear Admiral Lange, who had the so-called naval force under
him. I asked these men what was to be done; they shrugged
their shoulders. At any rate we were clear then; and I was
absolutely determined that fighting should not take place. This
was an absolute impossibility.

Q. But General Lanz, in the face of the order of your com-
mander in chief, after all, you had to do something. What did
you do?

A. I then called up General Vecchiarelli again on the telephone.

Q. That was still at night?

A. Yes, that was around about 3 o'clock in the morning.
There wasn't anything else to do. I went again with my chief
[of staff] by car to the Italian headquarters. When I arrived
there there was, of course, a great shock. General Vecchiarelli
had already gone to bed and had to be called. Of course it was

1093

terribly embarrassing for me. He himself did not speak very
much German and everything had to be translated by an in-
terpreter. General Vecchiarelli was, of course, terribly shocked
that I had come back again. I told him that I regretted very
much that I had to come back to him again but I had the strict
and unavoidable order; that my commander in chief was not
agreeable in any way to the preliminary agreement which I had
made with him and he had definitely rejected it and had demanded
that I should obtain the surrender and disarming of the 11th
Italian Army ; and this was the order which I had to bring him.
I told him that I regretted very much that this had come about
but there remained nothing else for me to do except transmit
this order to him.

Q. What was the attitude taken by the Italian Commander in
Chief, Vecchiarelli, towards this order which you had to give him
on behalf of your commander in chief?

A. General Vecchiarelli said, first of all, that he was very
sorry that the agreement we had made was ruled out and he
objected again to the total disarming. He said it would be a
dishonor for his troops to give up their arms. He could under-
stand that the army had to surrender to us in the situation, but
he really could not agree at all to the complete disarming. He
then implied that if the complete disarming of his troops was
ordered they probably would not obey an order of this kind and
that there would be the possibility of fighting. I assured him
that I wanted to do my very best.

Q. Perhaps you would begin the sentence again, Witness.

A. I told him that I certainly did not intend that fighting or
hostilities should take place, and that I would do my best to
avoid this. Then he kept on repeating his suggestion that his
troops should be allowed to keep their guns so that the troops
would not appear to be externally disarmed.

Q. Well, if I understand you correctly, Witness, during this
second discussion General Vecchiarelli was in agreement with
the surrender and the disarming, in principle, but he wanted this
disarming to be carried out in a way which would be in con-
formity with the honor of the Italian Army. Did I understand
you correctly?

A. Yes, that is a correct description. We then talked about
the possibility which then remained in this situation, with respect
to what we could do. Then I told him that for my part I would
do my best to see that, for the moment at least, his troops re-
tained their arms in order to allay his fear of the dishonoring
of his troops, I told him, and I said that I would do my best,
provided that he was in agreement that the 11th Army should

1094

surrender to the German Army, and that if the heavy arms —
the heavy machine guns etc. — were to be given up immediately, so
that at least a part of the disarming order was carried out.

Q. So, General, you deviated again from the order of your
commander in chief?

A. Yes, that’s correct. But in this situation I thought — I
might even say — that that was the most tactful and most clever
thing I could do. I was forced to do this.

Q. And then, Witness Lanz, after you offered to the Italian
Commander, Vecchiarelli, that, to begin with, his light arms
should be left with the troops, what did General Vecchiarelli say?
Did he accept this offer or did he reject it?

A. Well, of course, we talked about the situation, and the
matter was very clear. Then he convinced himself that the
measures which I had asked him to take in the matter then in
existence were correct, and it was a sign of my good will ; so he
declared himself to be in agreement with it. That is, the army
should surrender and that the heavy weapons should be given
up, and that he would distribute the orders for this to his troops
if the guns [rifles] could be kept. That was his request. There-
upon I told him that I would take notice of the fact that he was
in agreement with the surrender and that the heavy weapons
should be given up and that he should issue orders to that effect,
and that I, for my part, would do my best to see that the rifles
remained with the troops. That was the final result of our dis-
cussion. With this my task, that is the disarming had not been
actually carried out, but the surrender had been completely
carried out, and the Italian general was in agreement with this.

Q. But this mitigation of the conditions of the capitulation on
your own initiative, with which you had agreed and which you
had allowed General Vecchiarelli, did these things meet with the
approval of your Commander in Chief, General Loehr?

A. I reported to the army group when I returned that I had
now carried out the order, and that General Vecchiarelli had
accepted the surrender and that he was in agreement with it, but
he had urgently requested that, temporarily at least, the rifles
should be kept; otherwise, his troops would feel that they had been
dishonored. I said that I myself urgently requested that this
suggestion should be complied with by the German High Com-
mand.

Q. And what did General Loehr say to that?

A. He was in agrement with that. He did not have anything
against it ; he agreed to it.

1095

Q. And then subsequently, that is, now your task had been
completed, did you have anything else to do with the question
of the carrying out of the disarming?

A. The next morning, that is, after this very hectic night, at
about 10 o’clock in the morning, General Felmy came to me in
my billet and took over the measures to be carried out and, of
course, I was very pleased that I was relieved of this unpleasant
situation.

Q. And then did the Italian Commander in Chief, General
Vecchiarelli, adhere to this agreement? In other words did he
give the order to his troops for disarming and surrender?

A. I know only the following: that he had agreed with me
that the disarming would be carried out. That’s what I know.
Therefore, I must assume that he issued the order because the
troops would not give up their weapons by themselves. The dis-
arming of the whole 11th Army was carried out on the Greek
mainland during the next 14 days quite smoothly. I don’t know
of one single case in which there were any difficulties.

Q. You said, therefore, that the whole Italian 11th Army in
Greece, under the command of General Vecchiarelli, as Com-
mander in Chief, carried out the capitulation, the disarming, and
the surrender without any great friction?

A. Even today I still don’t know about any case in which
resistance was shown. The whole Greek mainland did not resist
at all or shoot within the sphere of my corps. This was, of
course, with one exception. The people otherwise surrendered
and gave up their arms. I have already described how the
Italians were gathered together in collection centers. The Italians
then marched in groups to the railroad station. Then they col-
lected there. I don’t know any case in which there was difficulty
anywhere on the Greek mainland. No complications or diffi-
culties were shown during this surrender.

Q. And in Ioannina, the capital of the Epirus where you went
afterwards, the surrender of arms, on the whole, was carried
out without friction. Is that correct?

A. I have already stated that the local corps staff there told
me when I arrived that I was to remain there and that the dis-
arming and surrender were to be carried out. This whole sur-
render and disarming was carried out completely and smoothly,
and I don’t know of one single case in which resistance occurred.
The Italian corps headquarters had tried to get the people in
Corfu and Cephalonia to be sensible about this. I will talk about
this later. The Italian commander sent his own chief of staff
in order to make Gandin surrender properly.

1096

Q. And where was the one case in which there were difficul-
ties, Witness?

A. Only with the one division which was on the islands of
Corfu and Cephalonia.

Q. Corfu and Cephalonia. They are on the western coast of
the Epirus. What was the situation on these two islands —
Cephalonia and Corfu?

A. On those two islands there were troops of the Italian divi-
sion which was under the command of General Gandin. This
division, or rather parts of it, had refused to surrender and to
give up their arms as they had been ordered to do by their own
Italian superiors [officers].

Q. Can you tell us, Witness, how many German units, at that
time, were stationed on those two islands and how large they
were?

A. I’m in no position to give you an exact answer, but I can
give you an approximate answer. To the best of my recollection
there were, on the island of Cephalonia, one regimental staff and
two so-called fortress battalions. The leader of the regiment was,
at the same time, the German commander of the island. The
Italian island commander was the commander of the Italian
division. On Corfu there was approximately one-third of the
Italian division of General Gandin. With respect to German
troops there was one airfield command staff, consisting of about
100 members and, apart from that, there were a few naval en-
gineers. Altogether there were very weak German forces there.

Q. The Italian fortress commander, you say, the commander of
the island, was the commander of the division. That was the
Italian general, Gandin, whose name has been repeatedly men-
tioned. Can you tell us the name of the German commander of
the island?

A. First, that was Lieutenant Colonel Barge.

Q. Perhaps you would spell the name “Barge”.

A. B-A-R-G-E. He is, at the moment, a British prisoner of
war in Egypt.

Q. And do you know, General, in order to establish this right
in the beginning, the name of General Gandin’s division?

A. The division was called the “Division Acqui.”

Q. I see. Perhaps you would spell it.

A. A-C-Q-U-I, Acqui.

Q. Perhaps you could, first of all, tell the Tribunal what
conditions prevailed on the island of Cephalonia and what events
took place. That was the island where General Gandin, himself,
was stationed with the bulk of his division.

A. General Gandin was, at my request, asked by the German

1097

island commander to surrender his arms and to capitulate, as
was done everywhere. General Gandin refused to do that. There-
upon General Gandin also received from his 11th Italian Army
the order to surrender his arms.

*******

Q. Witness, how did things proceed on 13 September, which
is the day from which the radio message just read from Barge
is dated; did any fighting start then, or can you remember?

A. On 13 September the Italians opened hostilities against us
very suddenly [which was] surprising to us, although not a
single shot was fired before that. Two of our ships were shot at,
and there were [personnel] wounded and killed, and the Italian
batteries fired at the place, Lixuri, which is also shown on the
map which is in the possession of the Tribunal. This place
Lixuri [Lixourion] , situated on a peninsula, was the headquarters
of the German commander —

Q. Just a minute, General, the place Lixuri, as you can see, is
situated along a bay on the Island Cephalonia, to the left on the
bottom of the map next to the letter “A” of Cephalonia, this is
the place, Lixuri, just mentioned by the defendant. You can
continue now, General.

A. After our discussions in Cephalonia had, strangely enough,
remained without any result and the Italians for some incompre-
hensible reason started open hostilities against us — this was the
only such case in Greece — I flew by seaplane to Cephalonia.

Q. When was that?

A. On 13 September, toward noon.

Q. I see.

A. At that time I was of the optimistic opinion that I might
succeed in achieving, in a discussion with General Gandin, an
adequate solution of the affair. I could really see no reason why
that should not be possible. There no longer could be any doubts
that the 11th Italian Army had surrendered or troop units had
surrendered. The Italian supreme command had agreed to this
surrender, and had also addressed the order to General Gandin
to surrender. I could, therefore, see no reason why the same
thing should not apply for Cephalonia, and this is why I flew to
Cephalonia with the intention to visit General Gandin and to
talk to him. As my plane approached the town of Argostolion,
which is also on the map — this is the capital of the island where
General Gandin’s staff was located — my plane was shot at. There-
fore, it was not possible for me to land there. That is, I could not
go down on the water. It was a seaplane. Consequently, I flew
to the northern end of the large bay, about 5 kilometers distant

1098

from Argostolion, and 1 landed there. From there I went to
Lixuri to the German commander of the Island. When I arrived
there I still saw the marks of grenades which had been caused
just before that by the Italian artillery. I remember quite clearly
one of these marks was on the building where the Italian island
commander with his staff was quartered. I then asked Lieutenant
Colonel Barge to infoi'm me about the situation, because the
whole situation was not quite clear to me. After he had informed
me, I asked him whether I could in some way contact General
Gandin. That, after all, had been the purpose of my trip, merely
to discuss things with General Gandin. Barge told me that he
had a telephone connection with Gandin. Then I asked him to
put me into contact by telephone with Gandin.

Q. Can you perhaps tell us what kind of a telephone connection
that was?

A. I believe it was a sea-cable between Argostolion and Lixuri.

Q. I see.

A. Yes, there was water between, of course.

Q. You reached General Gandin by telephone?

A. Yes, and I talked to General Gandin —

Q. Just a moment. Will you tell us as clearly and precisely
as possible what was said during your telephone conversation
with General Gandin?

A. Today, after 4 years, I cannot of course remember verbatim
what was said, but I can still recall certain trends of thought.
Substantially, I told General Gandin that I regretted not to be
able to come to Argostolion, as I had intended to, because to my
intense surprise I had been shot at while going there. Further,
I told him that I was surprised that on that day, in the morning,
he had opened fire against German troops and against Lixuri.
I believe I said that I couldn’t understand the meaning of such
action. I then told him — I always mean along those lines — that it
should be known to him that his army under General Vecchiarelli
had capitulated and had surrendered its arms, and that he him-
self had received an order from the Italian Army to surrender
his arms. I asked him why he didn’t do that. Gandin replied,
which I still remember, “the orders which I received were not
clear”. I believe that is the way he put it, his orders were not
clear. He asked me, as I also remember, to give him a clear
order, telling him what he was supposed to do. That is what
he told me. I said to him — “You will immediately receive the
order from me, but I would like to point out to you that if the
orders which you have are not carried out you and those re-
sponsible for this fact will be taken to account in a very sevei’e
manner”. That is what I particularly stressed. He gave me

893964—51 71

1099

to understand that if he received an order from me everything
would be in order and that he would arrange for the necessary
steps to be taken. That is in substance the course of my con-
versation with General Gandin.

Q. Witness, did you subsequently send such an order to General
Gandin as you have said, an order such as he asked you to send?

A. Yes, on the very same table where I telephoned I, myself,
wrote this order in my own handwriting and had this order
transmitted by telephone to General Gandin. He received this
order, and the text of this order is among the documents.

Dr. Sauter: May it please the Tribunal, we have no oppor-
tunity to prove through documents what General Lanz has said
here because he and his officers lost all their documents and their
baggage on the retreat. In spite of this we are still in a position
to submit to you this order, thanks to the ruling of the Tribunal
that the war diaries of the XXII Mountain Corps and General
Lanz were to be brought here. In these war diaries we find this
order, we managed to trace it there, and I am now in a position
to submit this order in documentary form, which of course, is of
great importance. That the order was not created now but in
1943 is quite obvious, because it came from Washington. This
order can be found in document book 5 for Lanz on page 16. It
is Document Lanz 166, Lanz Exhibit 64. This order, which is a
part of the war diary of XXII Mountain Corps, General Lanz’s
corps, has the following text. I quote:

“13 September 1943, The Commanding General of the XXII
Mountain Corps, To: The Commanding Officer of the Italian
Division ‘Acqui’ i.e., Gandin.

“1. The Division Acqui is ordered, effective immediately, to
surrender all weapons, except the officers’ small arms, to the
German commander of the island, Lieutenant Colonel Barge,
as has already been done by all parts of the Italian VIII and
XXVI Army Corps.

“2. If the weapons are not surrendered, the German armed
forces will enforce this surrender.

“3. I hereby state that the division under your command,
which fired at German troops and two German ships this morn-
ing at 0700 hours causing casualties of 5 killed and 8 wounded,
has committed an open and unmistakable act of hostility”.

The document is signed “Lanz, Lieutenant General, Mountain
Troops.”

Q. Witness, in consideration of the concluding sentence that
Gandin’s division had committed an act of hostility, I would

1100

like to make an interpellation ; do you know when the declaration
of war of Italy to Germany was issued?

A. I gathered that from the documents that were given to us
in Nuernberg. According to these, the declaration of war was
issued on 13 October 1943.

Q. On the 13th?

A. On 13 October; that is what I understand.

Q. And we are here dealing with the date of 13 September?

A. Yes.

Q. At that time there was not yet a declaration of war from
Italy to Germany, is that correct?

A. Yes, it is.

Q. Did you believe, General Lanz, that this order which General
Gandin received from you on his request would once and for all
straighten out this rather difficult situation?

A. At that time I was optimistic enough to believe that, espe-
cially after General Gandin had, as I have described, told me on
the telephone that he would act in this way. He, himself, asked
me to give him such an order. I had described the situation to
him and now there could be no doubt about anything. He knew
his army had surrendered. He had an order from his own army.
He, furthermore, had an order from me. He knew my attitude
that I wanted to deal with the situation without applying force,
and he gave me to understand that everything would be in order.
I flew back to Ioannina and told my officers that everything would
be all right. I was firmly convinced that that was so.

Q. And that was on 13 September 1943?

A. Yes, it was.

Q. You flew back to Ioannina, and what did the Italian Gen-
eral Gandin do?

A. He contacted Lieutenant Colonel Barge and continued nego-
tiations with him. If I recollect correctly, he agreed on a sur-
render of arms in three different stages. I believe on 14, 15, and
16 September; Lieutenant Colonel Barge reported this to me and
asked me whether I would agree to this procedure. I did not
want to start a dispute, and had Barge informed of my agreement
to the procedure that General Gandin undertook his surrender in
three stages. I said that I had to demand, however, that it be
started on the very next day. If he agreed to do that, I would
consent to the procedure and General Gandin was to be informed
that his division, as well as all other Italian divisions, would be
eventually transported to Italy. If he surrendered and delivered
his arms, as was done by all others, nothing would happen to

1101

him. That is what I asked to be told to him. All was bona fide,
because 1 believed everything would be in order.

* * * * * * #

Q. General Lanz, how did the events on Cephalonia develop
after this, did General Gandin keep his promise or did he not?

A. General Gandin, unfortunately, did not keep his promise.
The arms were not surrendered. It was reported that a part of
the Italian island occupation forces refused to surrender their
weapons, and it was further reported that three Italian com-
manders, who wanted to give up their arms, were shot at by their
own troops. Therefore, the situation was that a resistance group,
or whatever you want to call it, was in existence in Cephalonia,
which dominated the situation there and refused the delivering
up of arms and retained their hostile attitude toward us.

After this report had been received, I had to make a decision.
In the meantime, my superior agency had rather unpleasantly
taken me to account and pressed me continuously to take action
and kept after me as to what was the matter with Cephalonia
and General Gandin, why this matter was not in order, why I
did not take any steps against them, and why I did not take any
decisive action. The army group in turn was being pressed by
the OKVV and in the final analysis by Hitler, himself. Thus, there
was an increasing nervousness among all present because the
affairs on the Island of Cephalonia and later Corfu could not be
put in order, as expressed by the army group. In this matter I
was more or less held as the responsible person who was too slack
to put matters in order there. In actual fact, all I had tried was
to endeavor in my negotiations with General Vecchiarelli to deal
with the situation without any dispute or hostility.

I now had, whether I wanted to or not, to make a decision to
take steps against the Italians in Cephalonia. I informed myself
[from] among my staff, which of the troops were at my immediate
disposal [and] whether there was sufficient shipping space to
transport troops to Cephalonia. That was not very easy as the
island is in the Adriatic Sea and there could be no doubt that the
two fortress battalions and one company, which were also sta-
tioned on Cephalonia, would be suppressed by the Italians, and
that was what almost happened. I therefore ordered the 1st
Mountain Division to send two battalions, one mountain and one
artillery battalion, and the 114th Rifle Division to send one rifle
regiment immediately to the collecting point frcm where these
troops were to be provisionally transported to Cephalonia.

That happened in due course. I reported to the army group,
which in the meantime became rather unpleasant and unfriendly,

1102

that the troops had been sent to Cephalonia and that as soon as
they arrived there the Italian surrender of arms would be en-
forced.

Q. Did any fighting come about later and if so, who started
the attack?

A. On the basis of the relation of strength, the Italians were the
ones who attacked. The Italians first of all attacked our troops,
the two fortress battalions stationed there. One battalion on
the northern part of the island faced a very difficult position, so
that for some time we thought that battalion was lost. At first,
there was nothing I could do because I had no forces. When the
troops, which I mentioned before, arrived on the island they
landed on the southwest corner of the peninsula Lixuri. The
Italian coastal batteries fired heavily at the landing troops and
considerable losses were suffered. The area of the landing had
to be transferred to another spot, but eventually we managed to
land the troops. The troops were collected and were first of all
committed, so as to relieve the Germans on the northern part of
the island and to defeat the Italians who were there.

Q. Witness, when did you learn for the first time that General
Gandin at the very last moment stated that he had been made
many promises by a lieutenant colonel of the air force and what
did you learn about this? Did you take General Gandin’s state-
ments seriously or, if not, what did you think about the whole
thing?

A. I cannot remember the details of the Busch affair. I only
recall the whole affair through reading the documents here. At
the time, I had been under the impression that General Gandin
tried to find a pretext not to surrender his arms. Even today,
after examining the whole affair thoroughly, I feel inclined to still
assume this attitude of Gandin’s. He gave new reasons continu-
ously in order not to surrender his arms, although he knew quite
well what the situation was. His army had ordered the surrender,
his army had surrendered, and I had issued an order to surrender
his arms. He could not help being aware of these facts, but he
always tried to find a reason not to have to surrender his arms.
Eventually, he simply forced me to use force against him. Orig-
inally, I did not want to do that.

Q. Was the Island Cephalonia stormed by German troops after
that? . ■**?*)

A. I said that the German troops, one battalion, which on the
north island was stuck there between rocks and the sea was
relieved and the Italians were defeated. I, myself, later inspected

1103

that area. That gave me the hope that the Italians would realize
everything was quite senseless, which it was. When I flew to
Cephalonia the second time I took leaflets along which were
especially produced in Ioannina, many thousands of leaflets, in
order to drop them over the Italian front and to try and make
these people reasonable at the very last moment if possible. In
the meantime, after 4 days, there had been an uncertain state of
affairs; pressure was exerted by the army group and all of a
sudden a Fuehrer order arrived —

Q. Just a moment, Witness. Perhaps before you come to that
chapter you can tell us whether you, yourself, led the battle of
Cephalonia or did you commission another officer to do that, and
if so who was the officer who was in charge of this? I am asking
you this question because it is a question which will play a part
on later occasions.

A. I have mentioned that originally the German island com-
mander, who was the commander of the two fortress batteries,
Lieutenant Colonel Barge, had been the man in charge. Barge
honestly tried to cope with General Gandin, but he did not suc-
ceed. I am sure it was not his fault that he could not deal with
him. After the troops had to be sent to Cephalonia, which I
have just described, a commander of these troops arrived with
them, a Major von Hirschfeld. For tactical reasons among others,
I appointed Major von Hirschfeld island commander of Cephalonia
and Lieutenant Colonel Barge, after that time, only had the area
of the peninsula Lixuri left to him. Later on, Barge left Cepha-
lonia and was transferred because they were not satisfied with
him because he did not take strong enough measures. He was
later in Crete, where he was taken as a British prisoner of war.
I believe he is in Egypt today.

* * * * % * *

Q. Witness, a few minutes ago you touched upon a subject
with which I shall deal now. You said that during these days
you received a Fuehrer order. What kind of an order was it?

A. During those days a Fuehrer order arrived. I can no
longer say whether it was a teletype or a radio message. To the
best of my recollection, it was a very short order which expressed
that all Italians of Gandin’s division were to be shot for mutiny.
This is an order which, if not in the exact text, at least in sub-
stance, has been mentioned here by General Foertsch. This
Fuehrer order put me into a very difficult conflict of loyalties.
For me, I might almost say it was impossible to have all these
Italians shot. It was not feasible. When I received the order,
therefore, I refused in front of my officers to carry out such an

1104

order. I was shocked by such a request. For at least 2 days I
didn’t quite know what I should really do.

* * * * * * *

Q. Witness Lanz, you have already talked about this Fuehrer
order and about the fact that you opposed this Fuehrer order,
perhaps you would like to tell us again what in the main, with-
out quoting literally, was ordered in the Fuehrer order ; who was
to be shot according to the original Fuehrer order?

A. The Italians belonging to Gandin’s division were to be shot
as mutineers.

Q. Did I understand you correctly that the Fuehrer order
stated originally that all Italians were to be shot?

A. Yes, to the best of my recollection.

Q. And you protested against this as you have told us and as
also can be seen from the war diaries ; how many Italians would
have had to be shot, according to the Fuehrer order — how many
approximately?

A. Well, I should estimate, in Cephalonia there were about
6,000 to 7,000.

Q. And you refused to do that?

A. Yes, I refused to do that.

Q. You repeatedly rejected it and refused to do it, as you said?

A. I can only say I refused to do it. I cannot confirm it in
more detail, but in any case I refused to do it.

Q. I am only asking you if you did it repeatedly, because this
can be seen from the document, which I have just read, and you
could perhaps use this to aid your memory?

A. Yes, that resulted from my attitude.

Q. Witness, and then how did the matter go on?

A. I objected to this Fuehrer order, and I expressed the fact
that I could not carry out this order. And then, as far as I
remember, the decision came that the men could be spared but
that only officers should be shot because of mutiny. I thought
that this decision also went too far, and I expressed my point
of view again that only the guilty should be punished and that
some kind of a category should be fixed so that only the guilty
came into the question. And, as far as I know, I didn’t get any
further decision from the OKW with regard to this renewed
objection of mine.

Q. And then did you, yourself, again fly to Cephalonia?

A. Yes, on the 17th or 19th — at any rate about this time — -
I flew back again to Cephalonia in order to talk future steps
over with the island commander there. In the meantime, as I
have reported, the Italians in the northern part of the island had

1105

been defeated, on the battle field, of course, and then I discussed
with the island commander what had to be done tactically in case
the Italians did not refrain from resistance. I brought the
leaflets with me, and on my return flight I dropped them over the
front myself. There was still a certain hope that the Italians
would then stop fighting because this fighting was, in my opinion,
quite senseless.

* * * * * * *

Q. Witness, did you talk with the new island commander,
Major von Hirschfeld, also, about this order?

A. Yes, of course, I talked to him because I was caused a lot
of trouble by this matter. The situation in which I found myself,
at that time, was very soul torturing and difficult. As a result I
did not only talk with the officers of my staff about it, but also
with Major von Hirschfeld. I also told him that it was simply
not possible to do anything of this kind, and Hirschfeld completely
agreed with me. I said to him that I had objected to this order
and I hoped that the objection could be sustained. I said that I
would tell him what decision was reached about it, but I told
him, at the same time, that as soon as possible he should check
and investigate this Gandin affair and find the responsible people
for this mutiny, and that they should be sentenced according to
court martial. He agreed with this and said he would do his
very best.

Q. And did your request to Major von Hirschfeld coincide with
the second suggestion which you made to the army group, and to
which you did not receive an order?

A. Of course it coincided with the application which I had
made, namely, that the guilty people should be found and made
responsible for the matter. I said that some category of men,
fixed for some formal reason, should not be sentenced or shot.

Q. An intermediate question, Witness. You said, with regard
to this second proposal, in which you suggested that only the
guilty officers concerned in the mutiny should be shot — not a
whole category — that you didn’t get any answer to this. Did you
find out why you didn’t get any answer to this second suggestion ?

A. I can’t remember, but perhaps this suggestion didn’t get
through or wasn’t passed on or got stuck somewhere.

Q. Therefore, you don’t know whether this second proposal
was passed on by the army group or whether it was rejected by
Hitler? You don’t know anything about this?

A. No.

Q. You said you didn’t get any answer, if I understood you
correctly. You then gave Major von Hirschfeld the direction

1106

based on your second proposal. You dropped a large number of
leaflets. The affiant Doeppenschmitt has confirmed that. Did
these leaflets have any kind of an effect, and how did the situation
on the island develop?

A. Unfortunately these leaflets had no effect at all, or perhaps
I should say that they had the absolute opposite effect apparently,
because it was reported, as far as I can remember, that new re-
serves from the southern part of the island were brought up to
the front. That is, in order to continue the fighting, and the
fighting was actually continued. Our expectation that the fighting
would stop was not fulfilled.

* * * * * * *

Q. Well, General Lanz, how did the affairs continue. The order
of the Italian general, Gandin, dated 20 September 1943?

A. On 20 September, after the hopelessness of our efforts be-
came clear to us ; we finally prepared ourselves for the attack, and
on 21 September this attack started. As far as 1 can remember,
it lasted about iy% days. The tactical details are of no interest
here. In any case, after rather difficult and violent fighting, we
were successful in driving over the mountains into the southern
part of the island, and when the town of Argostolion was reached,
the Italians finally surrendered.

Q. With General Gandin?

A. Yes, also General Gandin.

* * * * * * *

Q. Witness, how often did you personally fly to Cephalonia
because of this matter?

A. As far as I remember, I was there three times.

Q. Three times, personally?

A. Yes.

Q. And then what did Major von Hirschfeld tell you about the
investigation of the Gandin affair, after you had entrusted him
with this investigation?

A. Major von Hirschfeld reported to me that the resistance
originated from Gandin, principally from the chief of staff and
obviously with the agreement of General Gandin. A large number
of officers had joined this resistance group.

Q. Did he report to you, as a result, whether individual officers
or individual parts of troops of the Italians were in favor of the
regular carrying out of the capitulation?

A. Well, this can already be seen from former reports which
we have already discussed. It was also similar, as on Corfu, that
there was a resistance group there which organized its resistance

1107

despite all requests to stop fighting. In spite of the previous
capitulation and orders which we sent them they did not stop
their resistance but the fighting was continued to the uttermost.
There can be no doubt that at this stage this was a completely
irregular fight.

Q. Now, Witness, what was the task you gave Major von
Hirschfeld with regard to the judicial settlement of the case of
Gandin?

A. I have already stated that on my second visit to Cephalonia
I said that the affair had to be investigated, and that the guilty
people had to be sentenced according to a court martial. As far
as I know, I repeated this commission again to Major von Hirsch-
feld when I was there the third time.

Q. And did the court martial sit in order to sentence the guilty
officers ?

A. I remember that when the sentence of the court martial
was announced against the guilty men, General Gandin, as far as
I remember, asked that he be allowed to speak either to Field
Marshal Keitel or to General Jodi. He referred again to his
connections which have already been mentioned. This, however,
was turned down by the island commander, since General Gandin,
by his whole conduct, had no right to do this ; he had been given
sufficient time.

Q. Witness, the prosecution maintains that all officers of the
Gandin staff were shot. Is that correct?

A. I tried, in the files which were available to me, to find ma-
terial to repute this assertion, but I could not find any figures.
I, personally, can say that as far as I recall that is not correct.
Gandin and his chief of staff and several officers were shot, but
I do not know that all the officers were shot.

Q. You mean all the officers of the staff?

A. Yes. But unfortunately I could not find any proof of this.

Q. Even if you are not a legal man, can you give us some
indication as to the basis, the paragraphs, or the point of view
on which the sentencing of General Gandin and guilty officers
was carried out? I mean, according to the court martial pro-
ceedings, of what had they made themselves guilty?

Q. Of course we thought a lot about these things at the time.
The legal position, the position on which we based our assump-
tions was, as far as I remember, the following: After General
Vecchiarelli’s army had capitulated, the members of this army
were therefore prisoners of war. Whether they wanted this or
not was not important from the legal point of view. Well, then,
if these prisoners of war, in spite of the orders which we sent to
them, and in spite of the negotiations which were carried on

1108

with them, and in spite of the summonses which were given to
them, goodness knows that was done in this case, in spite of all
this, continued their resistance with their weapons in their hands,
then of course that is mutiny. If a prisoner of war fights with
his weapon in his hand against the detaining power, in this case
the German troops, then, of course, this is mutiny according to
German conception, and probably also according to other concep-
tion's.

Q. General, you have already said that only General Gandin
and the guilty officers who had committed this mutiny or this
revolt were sentenced and shot. What happened to the other
officers?

A. Well, there were several thousand Italians on the island who
actually, according to the order mentioned, were supposed to have
been shot. The Italians were transported away in ships.

Q. With the officers?

A. Yes, of course. All the Italians who were taken prisoners,
apart from the officers who were sentenced, were transported
away as prisoners of war. As far as I know, first of all to Patras
and then after that to Piraeus. As far as I remember, there
were over 5,000.

Q. What were the German losses during this fighting which —
you have just described to us — -was caused by the Italians, I mean
the German losses?

A. Of course I don't know the details any more. I could not
say anything about this, unless I had not found an indication
in the files. It said there were about 50 to 60 dead, about 150
wounded, and some missing, that is more than 200 losses.

Q. Witness, you told us before that General Gandin and those
officers who acted together with him, according to your personal
opinion as a soldier, not as a legal man, had made themselves
guilty of mutiny or revolt. Are you convinced that this concep-
tion of law of yours was also shared by your superiors, not only
by your collaborators but by your superiors, or did you, at that
time or later on, hear any kind of counter opinion on the part
of your superiors?

A. What I heard from my superior officers rather went along
the lines which I have already stated today, that I did not inter-
vene enough, that is, that I was much too lenient. Also among
the superiors, the army group or the OKW, there was only the
one idea — that the whole thing was a revolt or mutiny. All the
orders which I received, or which I can remember, talked about
the revolting Italians and of insurgents and similar things. The

1109

opinion which I have mentioned here was, without doubt, funda-
mentally the same as that of my superior officers.

*******

TRANSLATION OF LANZ DOCUMENT 191
LANZ DEFENSE EXHIBIT 142

AFFIDAVIT OF WOLF CHRISTIAN VON LOEBEN, 7 NOVEMBER 1947

AFFIDAVIT

Having been reminded of the significance of an affidavit and of
the consequences of a false affidavit made knowingly or negli-
gently, I herewith declare upon oath the following for submission
to Military Tribunal V.

1. Ad Personam: My name is Wolf Christian von Loeben; I
was born on 26 January 1914 in Bautzen; I live in Bremen,
Metzerstrasse 18, c/o Lange; and I am a German citizen.

2. Ad Rem: The following statements refer to my official posi-
tion of operational staff officer (la) of the XXII Mountain Corps
during the period from 24 August 1943 until 25 June 1944.

As to the events in Cephalonia, I make the following statement :

Owing to a case of papadaci-fever, I did not arrive from Athens
at the Ioannina headquarters of the XXII Mountain Corps until
13 September 1943. At that time the situation in western Greece
was about as follows :

The Italian forces in Epirus had complied with the orders given
by the 8th Italian Army and the Italian corps headquarters and
laid down arms, which was done without any incident. Solely,
the Italian division “Acqui” under General Gandin, which was
stationed on the isles of Corfu and Cephalonia, refused to sur-
render these islands to the German forces stationed there. Gen-
eral Lanz had left by plane for Cephalonia on the morning of
13 September in order to make arrangements for the surrender
through a personal discussion with General Gandin.

Late in the afternoon of 13 September General Lanz returned
from Cephalonia with the following result:

His plane, in the process of landing, had been fired upon by
Italian troops and therefore been forced to land in another place.
He had been able to speak to General Gandin on the telephone
from the command post of the German island commander, Lieu-
tenant Colonel Barge, at Lixuri.

General Gandin, who alleged not having received so far any
clear orders, requested an order from General Lanz for the sur-
render of the island, which was thereupon given to him and with
which he promised to comply. General Lanz was thoroughly con-

1110

vinced that the surrender of the island would be effected without
further incident and had given Lieutenant Colonel Barge direc-
tives accordingly.

Contrary to expectation, however, General Gandin did not
accomplish the surrender of the island at the fixed time. He
managed to put off the German island commander for a day or
two by cleverly-conducted negotiations, finally declared that he no
longer had his officers under control, and launched a sudden attack
against the two German fortress battalions stationed on the
island, placing them in an extremely difficult position.

About 15 September, after having discussed the matter with
the chief of staff of the corps headquarters Colonel Dietel, General
Lanz decided to land on Cephalonia, hastily assembled elements
of the 1st Mountain Division and the 104th Light Division under
the command of Major von Hirschfeld with the task to relieve
the German garrison of the island, and to have the latter occu-
pied by German forces. Upon landing on Cephalonia, Major von
Hirschfeld was appointed German island commander and Lieu-
tenant Colonel Barge was placed under his command. During the
fighting, which resulted in heavy losses on both sides, the Italian
forces offering resistance in the northern part of the island were
defeated in the following days, without causing General Gandin’s
surrender. General Lanz after that went to Cephalonia again to
initiate further measures. Since signal communications between
the island (Major von Hirschfeld) and the mainland (corps
headquarters) were extremely poor — there was but one radio at
the disposal of the still inadequately organized corps head-
quarters — General Lanz left an officer of corps headquarters,
Major Zeidler, on Cephalonia with the task to keep corps head-
quarters well informed about the happenings.

Shortly afterwards, the decisive attack on the southern part of
the island began, which ended with the occupation of the capital
Argostolion and the capture of General Gandin, his staff, and a
large body of Italian troops. As far as I remember, General
Gandin’s chief of staff, who was the chief organizer of the fight
against the German forces, was killed in the course of the last
engagements.

During the days of the fighting, General Lanz had received
by radio or teletype, via the army group, a “Fuehrer order” to
the effect that all Italians on Cephalonia who had taken up arms
against the German forces were to be shot. Telephone communi-
cations between the army group and corps headquarters were not
yet existent at that time. General Lanz, who was greatly excited
over this order, sent, as far as I remember, a teletype to the army
group with the request to bring about at higher headquarters a

1111

cancellation of this order, recommending that only the guilty
persons should be held responsible. Thereupon, a new “Fuehrer
order” was received, saying that all the Italian officers were to
be shot. General Lanz, in my presence and in the face of the
chief of staff, voiced his opinion on this in a very sharp form, and
declared: “Being a decent soldier, I cannot be expected to carry
out such an order. I shall not carry out this order”.

After the fighting on Cephalonia had ended, General Lanz
immediately left for Argostolion again, in order to discuss with
Major von Hirschfeld the occupation of the island, as well as
the concentration and the evacuation of the captured Italians.
As far as I remember, he charged the commander of the 1st
Mountain Division, General von Stettner and Major von Hirsch-
feld* with investigating the events at the Italian divisional staff.
This investigation completed, General Gandin and several of his
officers were shot according to martial law [standrechtlich
erschossen].

I declare upon oath that the foregoing statements are correct.

[Signed] W. C. Loeben

Bremen, 7 November 1947

* The adjutant of Major von Hirschfeld, Kurt Hepp, gave an affidavit affirming many of the
statements in this affidavit by von Loeben, which was offered in evidence as Document Lanz 194,
Lanz Exhibit 181.

1112

VII. DESTRUCTION IN AND EVACUATION OF
FINMARK, NORWAY

A. Introduction

Count three of the indictment charged, among other things, the
wanton destruction of property in Norway, Greece, Yugoslavia,
and Albania, together with the maltreatment of the inhabitants
of the areas affected. Paragraph 9a. of the indictment charged
that the defendant Rendulic issued an order ( NOKW-086 , Pros.
Ex. 5014) in October 1944 “for the complete destruction of all
shelter and means of existence in, and the total evacuation of the
entire civilian population of the northern Norwegian province of
Finmark”, and that this order was ruthlessly carried out for no
compelling military reasons. This charge of the indictment
against the defendant Rendulic was dismissed by the Tribunal,
which stated: “It is our considered opinion that the conditions,
as they appeared to the defendant at the time were sufficient upon
which he could honestly conclude that urgent military necessity
warranted the decision made” (that is, “the defendant’s decision
to carry out the ‘scorched earth’ policy in Finmark as a precau-
tionary measure against an attack by superior forces”).

Below a number of the contemporaneous documents on this sub-
ject (sec. B) are followed by extracts from the testimony of
the defendant Rendulic (sec. C).

B. Contemporaneous Documents

PARTIAL TRANSLATION OF DOCUMENT NOKW-1776
PROSECUTION EXHIBIT 500

EXTRACTS OF TELETYPE FROM FUEHRER HEADQUARTERS SIGNED
BY JODL TO 20TH MOUNTAIN ARMY, 4 OCTOBER 1944,
ORDERING EVACUATION OF NORTHERN NORWAY

[Stamp] Top Secret

Fuehrer Headquarters, 4 October 1944
17 copies — 8th copy

Armed Forces Operations Staff Operations Section
[Stamp] Official

By officer only !

[Handwritten]

Quartiermeister 1
Quartiermeister 1
Quartiermeister 2
Quartiermeister 3
Administration 1

[Illegible initial] 6/10
( Transportation )

(Transportation) [Initials] Ku 7/10
[Illegible initial] 6/10

1113

Priority — Teletype
To:

1. 20th Mountain Army

2. Armed Forces Commander Norway

* *-*!>** *

6. Evacuation and destruction — All installations which might
be of use to the enemy are to be destroyed thoroughly, particularly
roads and railroad lines, port installations, airports, and other
installations of the air force industrial plants, armed forces billets,
and camps. All snow barriers on the through roads are to be
burned in time !

Rations and other armed forces supplies are to be destroyed
unless they can be transported.

The entire population of Norway capable of bearing arms is
to be taken along as far as marches permit and to be turned
over to the Reich Commissioner Norway for compulsory labor
employment.

Finnish hostages are to be taken along as the situation requires.
:* * * * * * *

By order :

Signed: Jodl

OKW/Armed Forces Operations Staff
Operations Section Norway
77 3608/44, Top Secret, Official

*******

TRANSLATION OF DOCUMENT NOKW-086
PROSECUTION EXHIBIT 504

TELETYPE FROM 20TH (MOUNTAIN) ARMY TO SUBORDINATE UNITS,
29 OCTOBER 1944, SIGNED BY THE DEFENDANT RENDULIC,
CONCERNING EVACUATION OF NORTHERN NORWAY

Top Secret [Stamp]

[Handwritten] Enclosure 6

TELETYPE

29 October 1944 [Illegible initial]
To:

1. Corps Headquarters XIX Mountain Corps, Urgent [KR]

2. Corps Headquarters LXXI Infantry Corps, Urgent [KR]
For information:

3. Corps Headquarters XXXVI Mountain Corps, Urgent [KR]

1114

4. Reich Commissioner for Occupied Norwegian Territories,

Oslo, Urgent [KR]

5. Corps Headquarters XVIII Mountain Corps, Urgent [KR]

6. Commanding General of the German Air Force in Finland,

Urgent [KR]

7. Admiral Polar Coastal Area, Urgent [KR]

8. Armed Forces Commander Norway, Urgent [KR]

9. Naval High Command/lst Naval Operation Staff (Koralle),

Urgent [KR]

Subject: Evacuation of north Norway.

1. Because of the lack of willingness of the northern Nor-
wegian population to evacuate the country voluntarily, the
Fuehrer has ordered the compulsory evacuation of the population
east of the Lyngsfjord in the interest of the security of the popu-
lation, which is to be preserved from bolshevism, and that all
houses be burned down or be destroyed. It is the responsibility
of the commander in chief of northern Finland that this order
is carried out ruthlessly so that the Soviets, supported by dwelling
places and a population wffiich knows the country, will be pre-
vented from following our withdrawal with strong forces. Pity
for the civilian population is out of place.

2. The men will understand the measures to be taken if it is
explained that the barbarian methods of the air war against the
German homeland and its cultural places have brought a misery
on our people surpassing by far that which will follow in the
wake of the measures which must be taken now in northern
Norway in order to prevent an early thrust by the Russians, ac-
cording to plan.

3. “ The evacuation staff northern Norway” subordinate to the
Qberquartiermeister in his capacity as evacuation commissioner
is formed as the competent authority.

Leader — Colonel Herrmann, Commanding Officer of the 310th
Grenadier Regiment. Corps Headquarters, XXXVI Mountain
Corps, is to detach Colonel Herrmann immediately to Army Ober-
quartiermeister. SS Obersturmbannfuhrer Neumann joins the
evacuation staff as representative of the Reich Commissioner for
Occupied Norwegian Territories.

4. The commanding generals of the XIX Mountain Corps and
of the LXXI Infantry Corps are charged by me with the re-
sponsibility for the carrying out of the evacuation. Corps Head-
quarters, XIX Mountain Corps, will evacuate the territory east
of the east coast [bank] of the Porsangenfjord (excluding the
fjord). Corps Headquarters, LXXI Infantry Corps, will evacu-
ate the area Porsangenfjord (inclusive) — Lyngsfjord (inclu-
sive).

893964—51 72

1115

5. Execution of the evacuation —

a. The entire evacuation area is to be emptied of people.

b. Evacuated settlements are* to be destroyed unless they are
to be used by troops marching through (that is, at the latest by
the rear guards).

c. The operation must be a sudden one and the officers of the
Reich Commissioner of Norway must participate and Norwegian
authorities must be harnessed for it; the latter, however, only
from the beginning of the operation.

d. The seized population is to be led to the nearest ports under
military guard (also small ports with docks suitable for cutters).

e . Local and district commanders are to erect reception camps
in or near these ports.

/. Men capable of working and marching, and in the western
districts women capable of marching also, are to be coupled to the
marching units furthest in front and to be taken along.

g. In as far as the population still has small ships available
they are to be used for the deportation of the evacuees. Military
cover [guard] !

h . All ships used by the armed forces (freighters and army
transports) are to be loaded additionally with as many evacuees
as possible.

i. Columns on Reichsstrasse [Reich highway] 50 to be formed
only to an unavoidable degree; invalids, women, and children
to be assisted by loading them on trucks. Only men really cap-
able of marching are to join the march columns!

k. Transportation of all evacuees first into the area west of
the Lyngenfjord, from there further control by Corps Head-
quarters LXXI Infantry Corps, in direct agreement with the
Reich Commissioner Norway.

l. In the area of the Corps Headquarters, XIX Mountain Corps,
the operations will start immediately ; in the area of Corps Head-
quarters LXXI Infantry Corps, on 1 November 1944.

m. Mission to be accomplished —

(1) By 9 November 1944 in the area eastward of the
line Kistrand-B illef j ord-Lakselv-Skogan var re-Karas j ok
(including these villages).

(2) By 12 November 1944 in the area cast of the line
Talvik-Kautokeino (including these villages).

(3) By 15 November 1944 in the remaining area.

Norwegians found in the respective areas after that period

are to be arrested and brought to the nearest town headquarters.
Directives will be issued concerning their further treatment.

6. It is requested that the Reich Commissioner Norway will
make available as much shipping space as possible, as numerous

1116

casualties among the Norwegians will otherwise be unavoidable
during the evacuation.

7. I request all officers concerned to carry out this evacuation
in the sense of a relief action for the Norwegian population.
Though it will be necessary here and there to be severe, all of us
must attempt to save the Norwegians from bolshevism and to
keep them alive.

[Illegible initial] [Signed] Rendulic

(Rendulic) General
Ia/Op. No. 1682/44, Top Secret
[Illegible initial]

Distribution :

Only on draft

PARTIAL TRANSLATION OF DOCUMENT NORWAY 10
PROSECUTION EXHIBIT 519

PROCLAMATION TO NORWEGIAN POPULATION SIGNED BY
RENDULIC AND TERBOVEN

To the Population

The evacuation of a part of northern Norway has been rendered
a military necessity as a result of the treachery of a Finnish
Government clique.

The evacuation necessitates the removal of the civilian popula-
tion as the enemy has proved that in those territories occupied by
him, he ruthlessly and brutally forces the civilian population to
give him active assistance in achieving his aims.

This means that no shelter or means of existence of any kind
can be left to the Bolshevik enemy in the fighting zone. All such
installations as housing accommodation, transport facilities, and
food stocks must be destroyed or removed.

The population in these districts will therefore be deprived of
the basis for their existence, so that in order to be able to
survive, they must evacuate to those Norwegian territories which
are still protected by the German armed forces.

^ :{S & ❖ ifc # ❖

He who does not comply with these unequivocal instructions
exposes himself and his family to possible death in the arctic
winter without house or food.

Rendulic

General, Commander in Chief, 20th (Mountain) Army

Terboven

Reich Commissioner for the Occupied Norwegian Territories

1117

TRANSLATION OF DOCUMENT NOKW^Q90
PROSECUTION EXHIBIT 506

REPORT FROM EVACUATION STAFF TO 20TH MOUNTAIN ARMY,

25 NOVEMBER 1944, CONCERNING EVACUATION
OF NORTHERN NORWAY

[Stamp] Secret

[Handwritten] Supplement 5
Army Headquarters, 25 November 1944
[Handwritten] War Diary

20th (Mountain) Army
Oberquartiermeister/Evacuation Staff
No. 31/4 Secret

The Evacuation of Northern Norway

I. Mission . — The intention to induce the population of Finmark
and East Troms to evacuate these territories voluntarily failed
because of the limited willingness to support this demand.

Accordingly, the Fuehrer has ordered the forced evacuation of
the territory east of the Lyngsfjord in order to protect the
population from bolshevism. The Fuehrer order to the armed
forces commander in chief of north Finland contains the follow-
ing demands:

1. The territory is to be emptied of human beings so that the
enemy cannot rely on the working potential and local knowledge
of the population.

2. All quarters, traffic and economic installations are to be de-
stroyed so ruthlessly that the enemy is deprived of every pos-
sibility of living in this area.

3. Whatever can be evacuated in important goods is to be
salvaged.

The initial time period set for evacuation, Porsangen territory
by 9 November, Alta/Hammerfest territory by 12 November, and
East Troms by 15 November [19] 44, could be prolonged until
20 November [19] 44 as a result of a change in the situation.
Accordingly, a salvaging of economic goods in excess of the first
planned amounts was possible.

The territory to be evacuated corresponds to 1 Ve times the size
of Denmark. The distances on the single national highway, the
Reichsstrasse 50, amount to 1,000 kilometers from Kirkenes to
Narvik, and from Hammerfest to Tromsoe 500 kilometers.
Furthermore, this highway was occupied by the march movement

1118

of the army, so that first of all the sea lane came into question
with regard to deportation.

For the purposes of the execution an evacuation staff was
formed at the 20th (Mountain) Army Headquarters, to which a
representative of the Reich Commissioner for the Occupied Nor-
wegian Territories was added.

II. Means. — 1. The possibility was merely offered as far as
the sea lane was concerned to utilize the unused ti-ansport space
on ships of the Reich Commissioner for Naval Transport (German
Commercial Flag) and on ships of the navy (Reich Service Flag
and Reich War Flag). Beyond that, Norwegian local ships and
numei'ous cutters were utilized.

2. On land, the population wandered off individually with their
own trucks (trucks, omnibuses, and horse drawn vehicles). The
young folk also made use of bicycles frequently for the march to
Narvik.

III. Execution. — 1. The inadequate records of the Norwegian
resident register were the basis for the seizure of the population.
According to them, the territory to be evacuated, including the
nomadic Lapps, had a population of about 62,000 before the
war. The (apparently very restricted) number of those per-
sons who fled the evacuation can accordingly only be estimated.

2. On account of lack of time the order to the population for
evacuation could only take place in the form of a joint decree
of the Commander in Chief of the 20th (Mountain) Army and
by the Reich Commissioner for the Occupied Norwegian Terri-
tories.

3. Assembly points for the deportation by sea were erected
in Billefjord and Honningsvag for the area Porsangen and East
Finland, in Hammerfest for the island territories, and in Alta-
Sopnes-Burfjord for the territory Alta with Kautokeino. The
collecting, i.e., the bringing together was accomplished by trucks
and omnibuses, from the sea with cutters, or from the islands
and the coastal localities in North Varanger by units of the navy.

Deportation from the Porsangen area took place mainly in two
mass transports with 1,700 and 1,060 persons on the steamers

“Karl Arp” and “Adolf Binder” from Billefjord. In Alta,
through a mass transport of 750 persons on the supply ship
“Dithmarschen”. Deportation for the rest, with Norwegian local
ships and cutters.

4. Roundup [ collecting ] organizations were set up through
civilian offices for quarters and further transport of the deported
population in Tromsoe, Narvik, and Harstad.

Forwarding to Mosjoen and Trondheim took place with ships
of the Norwegian “Hurtigrute”. Besides them, the following

1119

ships were utilized: the steamers “Brabant”, “Dronning”, “Sigurd
Jarl”, “Stella Polaris”, as well as the hospital ships “Lofoten”,
“Nordstern”, and “Polarlys”. This forwarding was finished by
25 November [19] 44, in the main.

5. Supplies , including quarters and medical help, could not be
guaranteed by the civilian sector in this wide area to a full
extent. The armed forces helped accordingly on a generous
scale —

а. Through the provision of rations where supplies could not
be managed in such bulk by the civilian sector. In the reception
stations on land as well as on board the German ships warm
rations were given out from field kitchens.

6. Through the provision of barrack camps as quarters at the
assembly points, Billefjord and Sopnes.

c. Through the help of the unit during transport to the coast,
as well as during embarkation, especially by assisting families
with children.

d. Through large-scale care of sick, injured, pregnant women,
and mothers with small children by doctors and medical installa-
tions. Admission of women for confinement into hospitals,
further transport on hospital ships, provision of small children
with milk, etc.

The transport of sick and injured from outlying homes for the
aged and homes for tubercular cases whose evacuation was neces-
sary, in order not to afford the enemy propaganda material,
required an especial regulation. The deportation from Karasjok,
Boerselv, Kautokeino, and Talvik and/or Korsfjord took place
under the responsible leadership of Colonel [medical] Dr. Gaebler
with medical trucks of the armed forces and our own boats used
for this.

б. The population could only take what baggage they could
carry, on account of the restrictions of the transport space. The
cattle had therefore to be taken over by the armed forces against
memoranda receipt, as far as it could not, in individual cases,
be taken along.

After extension of the evacuation time an extensive salvaging
of important economic goods was also ordered for the civilian
sector. Here the execution was the responsibility of the armed
forces. Furthermore, a final search was carried out by the Nor-
wegian police detachments on the islands and outlying localities.
Destruction will accordingly only be ordered by the subsector
commanders [Unterabschnittskommandeure] and/or rear guard
officers in agreement with the evacuation commissioners when
the salvaging of valuable economic goods (especially fishery
equipment) is finished, or impossible.

1120

Salvaging of the reindeer herds took place by an order to the
Lapps to drive their herds to the west over Kautokeino-Hel-
ligskogen into a reception territory in Tromsfylke. A retreat to
the south was prevented by a blockade on the Swedish border,
a lock at Helligskogen made possible the driving through of the
reindeer herds by the march movements of the unit on to the
highway Finland-Skibotn. This action could not be finished yet,
since, on account of the slight snowfall, the expedition of the
Lapps could not yet be put into operation to the full extent.
Where a herd could not be transmitted further, part of the ani-
mals were taken over against memoranda receipts by the armed
forces; the Lapps were nevertheless left the minimum necessary
for existence.

IV. Results (see appendix). — 1. In the reception organization,
including the fishermen already settled on the Lofoten, 36,914
persons were taken all together. About 5,000 persons migrated
before the start of the evacuation up till October from east Fin-
mark. About 1,100 persons have migrated by means of self-aid
without passing through the reception organization. A smaller
residue of workers of the armed forces is to be moved off later
with the unit.

2. About 10,000 persons have remained in the area of Kirkenes,
as a result of the war events. In west Finmark and East Troms
only about 8,500 persons, mainly Lapps, are left behind, whose
deportation was only of interest in connection with the finding
back of reindeer herds.

The evacuation in the territory between Lyngsfjord and
Porsangenfjord could therefore be carried through almost com-
pletely. Even voices of the Swedish press had to admit the suc-
cess of the action and speak of an almost 100 percent evacuation
of the population.

The success of the action was made possible through the excel-
lent cooperation of all participating offices of the armed forces,
the Reich Commissioner, and the Norwegian administration.

V. Experiences . — 1. Orderly evacuation under the conditions
imposed is only possible if an orderly method of seizure is present
in the hands of an administrative medium. Both were not at
hand. The Norwegian police [Lensmaenner] were partly the
first to leave their realm of their own accord. The administra-
tion in Hammerfest and in Talvik worked well.

2. Even in short periods for evacuation, a frictionless develop-
ment is possible, if a calendar is also at hand in civilian offices
for the evacuation of important goods. Idleness and avoidable
losses of important goods result from improvising.

3. It contributes in any case to the quieting of the population,

1121

if every family can have at their disposal a memorandum with
the individual orders for carrying out the evacuation. Such a
memorandum was to be issued by Minister Lie according to the
suggestion of the army Headquarters, but came too late to have
any great effect on the population.

4. Some untoward events, such as the execution of the “Law
concerning evacuation services” [“Gesetz ueber Hand- und
Spanndienste”] with the separation of the men from their fam-
ilies to be deported and with guarding like prisoners, burning
down of houses in the presence of the inhabitants even where
an immediate destruction was not necessary and shelling of the
locality Kjoellefjord by units of the navy, hinder the readiness
of the population to follow the officially prescribed way.

[Signed] Herrmann

Colonel and Leader of the Evacuation Staff

Distribution :

In draft

Enclosure to Headquarters of the 20th (Mountain) Army
Oberquartiermeister/Evacuation Staff, No. 31/44 Secret
Section IV

Table of Evacuation

As per — 25 November 1944

Number of residents to be evacuated on 9 April 1940 —

East Finmark circa 25,000

West Finmark circa 27,000

Troms, eastwards Lyngsf jord circa 10,000

62,000

Carrying out of the evacuation.

1. People evacuated —
a. Evacuees included in the report —

Via Tromsoe to the south ... . 29,014

Via Narvik . circa 3,400

Via Harstad . circa 1,000

On the Lofoten Islands circa 3,500

b. Moved to the south without regis-

tering

c. Moved from East Finmark up to

October circa

d. Workers employed by the armed
forces etc. Transported with the
troops.

[Total]

36,914

1,101

5,000

285

43,300

1122

2. People not evacuated —

No longer able to leave east Fin-

mark _ circa

Laplanders remaining in west
Finmark (mainly Nomads).
Fugitives who have avoided
evacuation. circa

10,000

8,500

200 18,700

[Total] 62,000

C. Extract from Testimony of Defendant Rendulic*

DIRECT EXAMINATION

* * :-c * :je * *

Dr. Fritsch (counsel for the defendant Rendulic) : General,
how did your assignment in the northern area come about? 1
think, to begin with, you were sent to northern Finland. How
did that come about?

Defendant Rendulic: In the spring of 1944, the Finns had
entered into negotiations with the Russians, and these negotia-
tions did not lead to any results. In June of the year 1944, a
Russian offensive had started. This had taken place on the south-
ern Finnish frontier along Lake Ladoga and the Finnish border.
This offensive had a number of successes in the beginning. The
morale in Finland had so far been quite a depressed one, and it
was to be expected that the Finns would enter into new negotia-
tions with the Russians. In this situation General Dietl had an
airplane accident. Up till then he had been the Commander in
Chief of the 20th Mountain Army in Lapland. General Dietl was
a personality who was much esteemed in Finland. I believe all
this took place on 23 June. During the night, on 24 June, I
received the order to report on 24 June to the Fuehrer’s head-
quarters. On that day I was given the post of the Commander
in Chief of the 20th Mountain Army in Lapland.

Q. What was the relation between Germany and Finland at
that time?

A. Germany and Finland waged a common war against Russia.
The German mountain army and the Finnish Army fought side
by side on the Finnish eastern border. In spite of this there w'as
no pact or alliance between these two countries. The two coun-
tries only acted out of a common interest against the common
enemy on the basis of military agreements.

* Complete testimony is recorded in the mimeographed transcript, 28-31 October, 3 November
1947; pp. 5126-5472.

1123

Q. What was the military situation generally when you arrived
in Finland?

A. On a front of about 1,200 km. east of the Finnish eastern
border there was the 20th Mountain Army from the Arctic Sea
toward the middle of Finland, and then came the Finnish Army.
There was no common leadership. The Finnish Army was led
by the Marshal of Finland, Baron von Mannerheim. The front
of the mountain army was comparatively quiet. A war of position
of a normal kind was going on here. The army itself was sta-
tioned in two large groups, with one corps in the south of Lap-
land, that is, the middle of Finland; and one corps was on the
coast of the Arctic Sea. Between those two large groups there
were no other forces. The width and depth of this area was
400 km. and was rocky or jungle-like. For all practical purposes
it was not possible to cross it.

Q. Was this question of terrain which you just mentioned of
any special significance and importance concerning the battles
and the later events?

A. Yes, it was of quite decisive importance. In the whole area
of Lapland, that is, the northern part of Finland, and the area
of my army, three-fourths of the country was covered with im-
passable jungles. The area was rocky or swampy. Toward the
north, up to the Arctic Sea, there was tundra and entirely rocky
areas. It was very important, considering the fact that the area
was impassable, that there were only very few roads in this area.
In Lapland there were, for all practical purposes, only three high-
ways — the so-called Arctic Sea highway which ran from north
to south through Lapland and which was about 600 km. long;
and in the south of Lapland there were two highways, each of
which led to one of the corps stationed there. All these high-
ways met in Rovaniemi in southern Lapland, a locality which is
situated near the polar circle; and from there two roads led to
the Swedish frontier, to the so-called frontier highway which
went along the Swedish frontier to Norway, to the Lyngsfjord.

Q. How did the political situation in Finland develop after all
that?

A. At the beginning of August the Finnish Government had
resigned, and the Finnish President had founded a new govern-
ment. The head of this government was Mannerheim. This
government soon entered into new negotiations with Russia. The
Finns loyally informed us of this pact. We expected that this
time the negotiations with the Russians would lead to success.
We expected that Finland would leave the alliance.

Q. What would be the situation then confronting the 20th
Mountain Army?

1124

A. The situation had necessarily to be extremely difficult if one
considers the fact that from the Arctic Sea, on the eastern coast
of Finland, the front led down to the south and that in the center
of Finland the German mountain army was joined by the Finnish
Army, then in the event of Finland's leaving the alliance very
suddenly a deep, open, uncovered flank would arise, which was
400 km. deep. This would be even more dangerous because the
best roads from southern Finland led to the unprotected road
junction of Rovaniemi and to the Swedish frontier highway. The
loss of Rovaniemi to strong Russian motorized forces and the
fact that these forces might reach the Swedish frontier highway,
which is the shortest distance to Norway, had to lead to a catas-
trophe for the mountain army.

Q. Were any provisions prepared for these events and, if so,
which ones?

A. Naturally, everything possible was prepared. The proper
forces were withdrawn and put up in preparedness. We had to
block the roads which led from southern Finland. We had to
dynamite all bridges and mine the roads to the greatest possible
extent. All this we had to do to prevent, wherever possible, the
enemy breaking into the practically unprotected flank of the army.
Of course this could only be prepared in order not to provoke the
Finns and also if possible not to provoke the Russians. But it
was prepared in the smallest detail.

Q. Now was anything known about the armistice conditions
which were to be expected on the basis of the negotiations?

A. No, unfortunately nothing was known about this. We did
know, from the negotiations which had taken place earlier, that
they had not been successful because of two conditions which the
Russians had imposed. The first condition was that the Russians
wanted to occupy Finland ; the second condition was that the
Russians demanded that the Finns were to fight against us. We
tried to do everything to get clues about the terms of the armistice
because that would be extremely important to know in good time.
We were not successful in our attempts, and as late as 2 Sep-
tember, the day when the Finnish Army signed the armistice
conditions, I had a long talk with Mannerheim, in which, of
course, we did not discuss the armistice which was already a fact.
But I thought that I was right in the impression that the Finns
would this time accept the condition to fight against us.

Q. And how did the situation actually develop?

A. On 3 September, the armistice between Finland and Russia
was concluded. Finland broke off all relations with Germany and
demanded that the German troops be withdrawn from Finland
within 14 days.

1125

Q. Was this demand to withdraw the troops within 14 days
feasible from a military point of view?

A. That demand could not be carried out. The demand obvi-
ously had the purpose of forcing the Finns to fight against us.
In order to evacuate Finland, the troops had to carry out marches
of 800 to 1,000 km. on foot. This would have meant marching
unceasingly for 5 to 6 weeks. Such an enormous effort could not
be expected of the troops in such a climate, and at that time of
the year, and in such a terrain as 1 have described. The soldiers
would have been able to bear up under this effort, but the horses
would not have been able to do it. And the mountain army had
very many horses because everything had to be carried on horse-
back. In addition we have to consider the fact that there were
many stores which had to be carried off and, finally, we have to
consider that the troops just cannot march off like that. The
enemy would prevent them from marching off and involve them
in combat actions which actually did take place. The combat
actions which took place, in order to get the mountain army out
of that area, took 5 to 6 weeks, and if one is fighting one cannot,
after all, march. It was more than 3 months until finally the
last man of the German Army had left Finland, and we tried to
expedite matters as much as we possibly could, especially in con-
sideration of the approaching winter.

Q. General, you will remember that a representative of the
prosecution has stated here that this period of 14 days was better
than no time at all? Would you consider that statement correct?

A. Anybody who had any insight into the conditions of the
roads there, the fighting situation, and what the leadership of an
army needed, would probably not have made such a remark.
Those 14 days to us only meant that we could evacuate to Ger-
many the depots and the medical stores which we had in southern
Finland. We could not do anything with these stores there be-
cause we had so much that we didn't know what to do with it
all. After all, the army had been provided for for a period of 9
months. These 14 days had no influence at all on the condition
of the army; it had even less influence because the Russians did
not feel themselves bound by this time limit. They attacked as
early as 8 September.

Q. General, will you, very briefly, indicate the next event which
occurred so that we may gain a picture of the situation?

A. As peculiar as this might sound, when we were concerned
with a retreat we were, first of all, busily engaged in building
up a new front, a front with a depth of 400 km. We succeeded
in doing this in 4 to 5 days. Then, we started transporting and
evacuating. On 7 September the first troop movement was carried

1126

out. We succeeded in withdrawing the southern corps without
the Russians knowing it. The Russians followed, and from that
date on they attacked continuously. Crises developed. The troops
which had already marched off had to return in order to relieve
the others. But, on the whole, our movement was successful.
The obvious purpose of the Russian attacks was to tie us and
the army down, to force us to fight, and to destroy us with their
superior forces. From the point of view of military leadership
the Russian actions were entirely correct. It was the Russian
endeavor to use all available means to reach the road junction of
Rovaniemi, in order to overtake us from the rear and thus reach
the highway near the Swedish frontier before we could. The
battle to prevent this Russian intention, which sometimes lasted
for hours, meant to us the existence or nonexistence of the army.
And it succeeded.

Q. Did the Russian attack now remain restricted to the south-
ern parts of the army?

A. No. Three weeks later an attack with especially superior
forces was made against the XIX Corps on the Arctic Sea. This
was a mistake on the part of the Russian leadership, which was
incomprehensible to me. It was a mistake to carry out these two
attacks at different times so that it became possible for us to
counter the Russian superiority by withdrawing forces from the
southern group and putting them at the disposal of the corps
near the Arctic Sea, and thus support this corps. These forces
succeeded in relieving the XIX Corps and getting it out of the
Russian encirclement.

Q. General, is this the XIX Army Corps which was east of
Kirkenes?

A. Yes, this was the XIX Corps which was east of Kirkenes,
about 150 km. east of Kirkenes.

Q. Who commanded it?

A. Lieutenant General [of the Mountain Troops] Jodi, who
appeared here as a witness for the prosecution.

Q. And now when did the first order arrive to evacuate north-
ern Norway?

A. To the best of my recollection that must have taken place
towards the latter half of September.

Q. And how was this order carried out?

A. We carried out this order very loosely. The army order at
that time was to retreat towards approximately the center of
Lapland, and there to halt. We felt strong enough to defeat all
attacks in this position, and we made this evacuation a voluntary
one by supporting those northern Norwegians who wanted to
get away.

1127

Q. Did this situation change later on and, if so, for what
reasons?

A. This situation changed later for several reasons. Prin-
cipally on 4 October we received an order saying that we were
not to remain in Lapland, but instead the army was to be led
back to a position near the Lyngsfjord in Norway. That meant
to us a movement of about 800 to 1,000 km. which would neces-
sarily last far into the Arctic winter. Then, when in October
the attacks against the XIX Corps started, we were, after all,
quite surprised that the Russians were in a position to success-
fully commit their great numerical superiority, even in that
barely negotiable terrain. And just around that date, a further
order arrived. The four best mountain divisions were to be sent
to the Continent, which meant more than half of the strength of
the army. These were events which could not possibly have been
anticipated, and they naturally influenced our judgment of all
problems at hand.

Q. General, this order — to distinguish between concepts which
you mentioned — did the action which was to take place on the
basis of the order of 4 September have a code name?

A. This movement was called “Nordlicht.”

Q. You were talking about the influence which became effective
through the new situation which confronted you?

A. This influence was seen particularly in the fact that the
army could not deny that the second evacuation order which had
come in on 20 October was fully justified. Only the OKW was
in a position to know what would be demanded of the army in
the future and which forces would be at my disposal for those
purposes.

Q. If you knew, a long time before the second evacuation order
arrived, the Russian strength and counted on the Russians' mov-
ing up on you, why did you then not demand this order for
evacuation and destruction?

A. I never waited for orders which were a matter of course,
and I never asked for orders in matters which I thought I could
regulate myself. I knew quite well what I would have to do in
accordance with the situation. If I had not received this second
evacuation order of 28 October, then I intended to concentrate
the population in a tolerable area of living space. The necessary
sanitary installations were to be left for them, but everything
else — the quarters which would have become available, the high-
ways which existed, all bridges and harbor installations, and
everything else would have been destroyed. The necessity of
these measures was never doubted for a single instant by anybody.

1128

Q. One question in between, General. Were the Russian troops
up to standard in a military respect?

A. In the extreme north the Russians had to have excellent
troops because the terrain and the climate were so very difficult,
and because the German and the Finnish troops which confronted
them were some of the best units which existed throughout this
whole war. The Russians were excellent fighters, especially in
rocky and forest areas. Their special units, such as the “ski
brigades” which comprised people from Siberia were excellent,
and they gave us considerable trouble.

Q. Genera], how did you imagine the Russians would follow
you up?

A. There were two possibilities as to how this could be done.
First of all, it was possible they could follow up on highway 50,
which led from Kirkenes via Tana, then it was possible that
they would move along the highway via Ivalo, and finally there
was the possibility to follow along the so-called frontier highway
along the Finnish-Swedish frontier.

Q. General, would you be kind enough to look at the map and
show us the most important points on it?

A. One possibility would be to follow up along highway 50.

Q. At this opportunity may I point out to the Tribunal that
that is the highway which the Tribunal saw and used when it
went to Norway, along Kirkenes to Hammerfest.

A. Then it was possible to use the road to Ivalo, which joined
highway 50. The third possibility was to push along via Rova-
niemi, along the Swedish frontier highway to the Lyngenfjord.
Those were the three possibilities on the land route. A further
possibility was to follow up by a sea operation starting in the area
Murmansk-Kola Bay, which is roughly about here. [Indicating]
The most suitable places for landing were the Fjords of Alta and
Varanger in the southern part of Finmark. Into this area the
roads lead from Finland, which the Finns could have used on the
land route.

Q. You are talking about landing operations, General ; did
you count on the possibility of such landing operations?

A. Landings had a great deal of advantage for the enemy,
because to march through these rugged surroundings in winter
time through the whole of Finmark is extremely strenuous, and
the Russians could have saved themselves this effort if they had
carried out a pursuit operation at sea, which would have been
considerably simpler. Such an operation had to be anticipated.
The OKW also expected landings, even from the British, and
they thought they would take place somewhere near Narvik, and
at least half a dozen times we were told the opinion of the OKW

1129

concerning these landings. That can be frequently found in the
war diary of the army which arrived here from Washington.

Q. Were the prerequisites for such a landing good for the
Russians, such a landing as you expected would take place?

A. Yes, we knew that in the Kola Bay there was a great number
of ships, hundreds of thousands of tons which were part of the
convoys which came through the Arctic Sea to Murmansk about
twice a month. Those were convoys of about 50 to 60 freighters,
protected by battleships, destroyers, aircraft carriers, and other
auxiliary vessels. The Kola Bay was reconnoitered towards the
end of September. We saw there a great number of ships, battle-
ships, cruisers, aircraft carriers, etc., and those, without doubt,
were British vessels, because it was well known the Russians
only had one battleship in the Arctic Sea.

Q. General, if I mention to you the figure 230,000 tons of ship-
ping, which I found in one diary, as said to have been assem-
bled in the Kola Bay, would that be sufficient to carry out a large
landing operation?

A. Yes, 230,000 tons can undoubtedly transport six to eight
divisions, but this number of tons reported here is not the maxi-
mum of what the Russians would have been in a position to use,
because twice a month another convoy of 100,000 to 200,000 tons
of convoy vessels arrived in the Kola Bay. Also, we learned
towards the end of September or beginning of October — I don't
remember the exact date, it's in the war diaries — we learned that
these convoys, which up until then had been sent by the Russians
with British support, were led by the British Admiralty from the
end of September onward, and a landing operation would have
been supported through the fact that the Allies had in the
extreme north undoubted supremacy on sea and in the air, and
those were the best prerequisites that they could possibly have
for a landing.

Q. Were there other factors as well? I am mainly thinking
about the question of Swedish neutrality ; did you in this respect
have to anticipate any difficulties?

A. Yes. We had to anticipate a violation of the Swedish Gov-
ernment. It could not be expected that the Swedes would resist
Russian pressure if the Russians demanded from the Swedes to do
the same as we had demanded from them in 1941. In that year
we had, with the consent of the Swedish Government, moved one
infantry division through Sweden to Haparanda, near the Finnish
frontier. Of course, that could only have been an operation of
secondary importance which would have mainly been directed
against the area near Narvik. The main operation was to be
expected against southern Finmark.

1130

Q. Is a landing operation in southern Finmark dependent on
the season?

A. No, it is not dependent on the climate, because under the in-
fluence of the Gulf Stream the fjords do not freeze up. Also, there
is not very much snow in those districts in winter, but it is quite
cold. It was known that the Russians, as well as the Finns, were
extremely well equipped for this winter climate.

Q. General, if I may summarize your statements, you said
that the army found itself in an extremely difficult position; did
the difficult position have any effect on the morale of the troops?

A. Yes, it had a considerable effect on the morale of the troops.
Everybody was aware of the difficulty of the position. From
censorship of soldiers mail we learned that the morale of the
soldiers sometimes bordered on panic. We found letters written
by soldiers in which they said that a “second Stalingrad is in
preparation,” “the army is doomed,” “when we freeze in with the
Arctic winter we will freeze as Russian prisoners.”

Q. Did the Russian propaganda, and if so to what extent, make
use of this situation?

A. The Russian propaganda made very clever use of this
situation. Above all they tried to make the men distrust their
leaders. Very soon after Finland left the alliance they spread
the news, by radio as well as by leaflets, that the commander in
chief of the mountain army was an Austrian, and he wanted this
army to fall into the hands of the Russians; this fact was dis-
covered and his withdrawal and dismissal was to be expected.
In connection with the events of 20 July 1944 and the conse-
quences of this event which had only happened a short time
before, this propaganda found fertile soil. There was a very
dangerous crisis among the soldiers especially with regard to con-
fidence in their leaders which could have led to a catastrophe if
the army or parts of it came into difficult situations. In order to
counteract the effects of the Russian propaganda, Hitler, on 17
September, decorated me with the Golden Badge of Honor, and
thus the effect of the propaganda was counteracted immediately.

Q. General, when were you convinced that the Russians would
not follow up on the land route via Northern Finmark?

A. I cannot tell you exactly when I became convinced of that
fact. I assume it was toward the latter part of November.

Q. Well, what was it you ascertained at that time?

A. It had become known that the Russians had only followed
us up past Kirkenes with weak forces. At first however, we
had to assume that they wanted to wait and gain time in order
to allow things to settle down and to consolidate their forces
after many weeks of hard fighting which had cost them many

8M3M--5I 73

1131

losses, and as one is apt to do as a rule when one prepares a new
operation.

Q. Was it possible to reconnoiter the Russian positions so that
you could be informed about them?

A. During the decisive period of time, the middle of November,
for practical purposes it was no longer possible to reconnoiter.
The airbases had all been transferred to Norway. The nearest
one was in Butevos, which is about 1,000 kilometers distant from
the Murmansk railway. Around about that time daylight lasted
only a very few hours each day. The Arctic night had already
extended over the majority of the 24 hours. Therefore, at such
a, great distance for a flight and with the very short period of
daylight, it was not possible to reconnoiter the movements along
the Murmansk railway thoroughly.

Q. General, would you be kind enough to show us on this occa-
sion the distances on the map?

A. Butevos is here [indicating].

Q. I would like to point out, Your Honor, that we made an
interim landing in Butevos.

A. That would have been the direction of flight for reconnoiter-
ing, and here is the Murmansk railway [indicating].

Q. Therefore, you would have had to fly over parts of Sweden
and Finland or you would have had to fly around this area?

A. We would have had to fly over the whole of Finland.

Q. When was it certain to you that Russia had withdrawn
forces from her former Lapland front?

A. The first news concerning this fact was received toward
the beginning of December. It was a communication from Army
Group North which was stationed near the East Prussian fron-
tier, and it had been confronted by a division which up to that
time had confronted my front [troops] in Lapland. We did not
receive any further news concerning any other forces. My front
in Lapland faced about 30 Russian divisions, and the Finnish
front faced the same number. These forces would have been, in
any case, far too strong in the very restricted area in Finmark.
The withdrawal of forces from the Lapland area could not give
us any information concerning the real intents of the Russians
in Finmark. How many forces the Russians actually did with-
draw never became known to us, and I do not know it to this day.

Q. And for what reason did you after that period continue the
evacuation and the destruction?

A. The evacuation had, at that date, been actually carried out
for all practical purposes. The report concerning the evacuation
is dated 25 November. ( NOKW-090 , Pros . Ex. 506 .)* There-

* Document reproduced in section B.

1132

fore, it can be assumed that around that date it had been con-
cluded. The destruction which was carried out also in the south-
ern area of Finmark had to be continued, because moving up on
highway 4 50 was not the only possibility which was open to the
Russians. The even more likely operation as of November would
have been a landing in southern Finmark.

Q. Why were the destructions which you carried out not re-
stricted to the villages along highway 50?

A. At first sight one might suppose that marching troops
would only need the localities along the march route for quarters,
but that is not the case. Even in districts which are densely
populated there were and are many villages, like for instance,
in the center of Russia. The villages along the march route were
never sufficient for the accommodation of the marching troops.

Instead, these troops also had to use those places which were
a good distance away from the march route, and they had to over-
look the great strain of the march, when it was necessary to quar-
ter them in houses, etc., and that would have undoubtedly been
necessary at that time in Finmark because of the climate. If
the weather is good those extra marches can be saved by spending
the night in tents right on the road.

Q. May it please the Tribunal, I would like to submit a photo-
stat of this map for information purposes because it is rather
difficult to see the map. ( Rendulic 100, Rendulic Ex. 44.)

General, how about inhabited locations along the coast and
along the fjords?

A. The inhabited localities along the coast and along the fjords
were of the same significance. One has to consider the fact that
highway 50 led partly immediately along the coast and partly
was very near the coast. It further has to be considered that an
army does not only march ; it also has to live, especially when it
is supposed to prepare an attack. Then the army is apt to spread
over the whole country. Not only the troops have to be accom-
modated but there are also many installations to be taken care
of such as work shops, hospitals, depots, installations for supply;
and for all these installations everything that was there con-
cerning houses, etc., was necessary to accommodate all these
operations and that was the military significance of the appar-
ently far distant inhabited localities.

Q. Did that also apply for the fishing villages which were up
in Norway?

A. Yes, the same fact applied to them. As a rule, they could
only be reached by cutters or boats. These were the most impor-
tant means of transportation in that district. We also had our

1133

bases in the fjords in those isolated localities and we maintained
communications with them by boat.

Q. I would now like to talk about one specific place and that
is Hammerfest. Will you please tell us the significance of Ham-
merfest?

A. We worked through all the possibilities which the enemy
had concerning landings. On that occasion, we again and again
were confronted with the fact that Hammerfest would be the best
point for supply for troops which had already landed. It would
be a good starting point and would be a good place for distribu-
tion for the more detailed supplies to the other landing points in
the fjords. Further, Hammerfest was situated in the vicinity of
highway 50. In order to get there all one had to do was to cross
the narrow Kvaenangen Fjord and then one had an excellent
road. The place itself could accommodate a strong regiment or
even a division if necessary. This double significance of Ham-
merfest was a fact for an enemy in pursuit. You must not think
that we destroyed wantonly or senselessly. Everything we did
was dictated by the needs of the enemy. That was its necessity.

Q. And what was your attitude now toward the evacuation
order?

A. I was fully aware of the effects of this evacuation order on
the population and I also knew that the execution of the evacu-
ation would mean a considerable burden to the army. In spite
of this I had to obey the order. Concerning the necessity of
carrying out destructions, my opinions coincided with the opinions
of the OKW. It was a matter of course to me, and everybody
else, that destructions had to be carried out. My opinion de-
viated from Hitler’s opinion in the beginning only in the one
factor. I did not think it was absolutely necessary to transfer the
population to other areas but I could not close my eyes to Hitler’s
reasons of military necessity. I could not deny that they were
justified.

Jodi warned me too. He said this time I had better follow the
evacuation order since Hitler insisted under all circumstances
that this order be carried out. Furthermore, I knew — and this
is also contained in the OKW order — that the most decisive factor
in this whole affair was the Reich Commissioner in Norway. It
was well known that he, this man, was very angry because the
first evacuation order had not been carried out and now he would
closely supervise all activities of the army. It was therefore quite
impossible not to obey this second evacuation order.

Finally, I had to tell myself that it would possibly be better
for the population to be transferred to other areas rather than to
spend the hard winter in the destroyed country. I participated in

1134

both winter battles in Russia. Therefore, I know what flight from
cold means. I had to realize that the Russians, if they followed
us, and if they were confronted with the choice of either saving
themselves by using what remained in the way of shelter or spar-
ing the population, it was certain that they would not spare the
population. Therefore, in the final analysis it was the best thing
for the population that they were removed.

Q. You were talking about the Reich Commissioner for Nor-
way. Will you give us the name of this man, please?

A. His name was Terboven.

Q. That is the same Terboven whom you have already men-
tioned?

A. Yes, he is.

Q. General, what were the measures you ordered for the evac-
uation?

A. I have to say something else first. The operation which had
to be carried out by the army was possibly the most difficult land
operation of the whole war. During those days I said to my chief
of staff, “If sometime after this war you have to train general
staff officers, then you will have to make this operation a basis
of the training because it’s impossible to think of anything more
difficult.” The army was spread over an area of 600 kilometers.
That is, it was spread over a wider area than, for instance, the
Allied forces in France and those forces were more than a million
men strong. The problem was to relieve this army out of an
encirclement from three sides and that, in battle with a superior
enemy. Then this army would have to be concentrated on two
highways and, finally, it would have to march along only one
highway. All that would have to be done on foot and in the
Arctic winter. That meant an enormous task for my staff, a more
difficult task cannot be imagined. I could not burden it further
with the extensive work concerning the evacuation. Therefore,
I formed a special staff for this operation — that is, the evacuation.

Q. General, can you indicate to us on this map the area over
which the army was spread?

A. No, I am afraid I can’t. The whole eastern part is missing.

Q. You said the eastern part of that area is not contained on
the map?

A. Yes, that is what I said.

Q. Did the evacuation staff receive definite directives?

A. It received certain instructions mainly with respect to co-
operation with other agencies of the armed forces and with the
Norwegian Government. I am afraid I don’t know any details.
That was the work of my chief of staff. All I know is that I
emphasized particularly that the evacuation had to be carried out

893964 0—51 74

1135

with all consideration for the population. Around that time I had
learned unofficially, for some time, that after taking the army
back to Norway I was to take over the post of the Commander in
Chief of Norway, and immediately after the evacuation order I
received the official order for this transfer. I attached the
greatest importance to good relations between myself and the
Norwegian population. For this reason alone I insisted that the
evacuation should not give any cause for misgivings among the
population. You may also rest assured that if any kind of
excesses had become known to me, any unnecessary harshness
or any inconsideration, I would have taken countermeasures imme-
diately. I was not a man who would let himself be prevented
from carrying out his intentions by some action of a subordinate
agency.

*******

1136

VIII. PHOTOGRAPHIC REPRODUCTIONS OF
DOCUMENTARY EVIDENCE

Fernaobreiben

An

B«v4ia»«K0M»Qaneral In Serbian

mikJimm*

x»

id

Io

1.) S&mtliche unteratellten Truppen, eineehlieflliah
Bulgaran, eind aazuweiaen, bei K el dung Uber
Sabotage, tfberfiille uaw, eofort erf oigte Oder
baabaichtlgte Stihnem&Snftbaen besw. G eg enma Snath men
mitzuaaelden.

2.) Beh^ndlung von Oefangenan i» Verlauf von tJnter-
nehaungen bedarf Anwendu ng strengeren KaSsiabee.

Xm Kampf Gefangene kdnnen nicht unachaldlg sein.
Leute die eioh im KampfgelSnde herumtreiten und

AM M vv » . -

nloht In ihrer Behauaung sind, etteean ala kampf-
beteiligt angeeehen und dementa pr eobend eraohoaaeo
warded, Wilde Auffaaaung in Truppe im Klrblick auf
gleiobe Stnatallung im vargangenen Sommer und die
daraus entaprungenen Folgen ach&rfoteas bakhmpfenl

h%

tral der Pi<

General der Pioniere

W.Bfh.Siido«t*(A0K.12) la Hr 53^42 g.
6. 2. #42, - Uhr r

%

Document NOKW-945, Prosecution Exhibit 174 . Draft copy of teletype
requesting reports on reprisal measures , with signature-initial “K” of
defendant Kuntze, Acting Commander Southeast, next to date “6/2”. His
chief of staff, defendant Foertsch initialed the draft in the lower right;
“F” with date “6/2”. Translation of the teletype appears on page 999.

1137

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Document NOKW-905, Prosecution Exhibit 143[l] t a forwarding letter from
734th Infantry Regiment to 704th Infantry Division , of which it was a com , -
ponent part, enclosing a report of shootings . Translation appears on
page 995 .

1138

Ober leutnajn t Halther

Chef 9./X. 8.433.

©cfjeim

O.U., den 1. 11. 1941.

Bericht liber die ErechieBung von
Juden und Zigeunem.

jrs;a:5c«sK:aKs:ss:»»«:ss5sar»a:as5»®

Each Vereinbarung mit der Bienstatelle der SS holte ich
die auageauchten Juden bzw. Zigeuner vom Gef angenenlager Bel-
grad ab. Die Lkw. der Feldkommandantur 599* die mir hierzu zur
Verfttgung standen, erwiesen a ich als unzweekm&flig aua zwei
Gritnden*

1. Werden sie von Zivilisten gefahren* Me Geheimhaltung ist
dadurch nicht sichergeetellt .

2. Waren aie alle ohne Verdeck Oder Plane, sodaB die Bevdlkerung
der Stadt sah, wen wir auf den Fahrzeugen batten und wohin
wir dann fubren. ^or dem Lager waren Frauen der Juden ver-
aammelt, die heal ten und schrien, ala wir abfuhren*

Ber Plata, an dem die Erechieflung vollzogen wurde, iat sebr
giinstig. Er liegt ndrdlich von Panoevo unmittelbar an der Stra-
6e Panoevo - Jabuka, an der sich eine Bdachung befindet, die
ao hoch iet, da£ ein Mann nur mit MtShe hinauf kann. Bieser B5-
Bchung gegeniiber ist Sumpfgel&nde, dahinter ein FluB. Bei Hoch-
w8Lsaer,(wie am 29* to*) reicht das Wasser fast bis an die B5-
sehung. Ein Entkonanen der Gefangenen iat daher mit wenig Mann-
achaften zu verhindern. Ebenfalla gUnatig iet der Sandboden
dort, der das Graben der Gruben erleicbteri und somit auch die
Arbeitszeit verkttrzt.

Nacb Ankunft etwa 1 1/2 - 2 km vor dem ausgesucbten Flats
stiegen die Gefangenen aus, erreicWbn im PuBmarsch diesen, wah-
rend die Lkw. mit den Zivilfabrern sofort zurliokgescbickt wur-
den, um ibnen mdglichst wenig Anhalt apunkte zu einem Verdacht
zu geben. Bann lieB icb die Str&fie ftir sdmtlicben Verkebr sper-
ren aus Sicherbeits- und Geheimhalttmgsgrlinden.

Bie Sichtstatte wurde durob 3 1*M.G. und 12 Sohtitzen ge-
sicberts

1# Gegen Plucbtversuche der Gefangenen.

2. Zum Selbstschutz gegen etwaige Uberfille von serbiacben Ban-

den.

Document NOKW-905, Prosecution Exhibit 143 [2\. Page one of report of
shootings from 9th Company , 433rd Infantry Regiment which was at that
time attached to 734th Infantry Regiment. Translation appears on page 996.

1139

Das Auaheben tier Gruben nimmt den grbBten Teil der
Zeit in Anspruch, whhrend das ErschieBen selbst aehr schnell
geht ( loo Mann 4o Minuten)*

GepSckstiicke und Wertsachen warden vorher eingeaem-
melt and in meinem Lkw* mitgenommen, am eie dann der HSV zu
tibergeben*

Das ErschieBen der Juden ist einfaoher als dae der 2»i-
geuner. Man maB zugeben, dafi die Juden aehr gefaSt in den
Tod gehen, - sie stehen aehr ruhig,~ whhrend die Zigeuner
heal an, schreien und aich daaernd bewegen, wenn sie achon
auf dam ErschieBungsplatz stehen* Binige sprangen aogar vor
der Salve in die Grube and versachten sich to# zu etellen*
AnTangs waren meine Soldaten nicht beeindrackt* Am
2*Tage jedoch machte sich achon bemerkbar , daB der eine Oder
and ere nicht die Nerven besitzt, auf lMngere Zeit eine Er-
schieBong durchzufuhren* Mein persbnlicher Eindruck 1st,
daB man w Shrend der ErschieBung keine seeliachen Hemmungen
bekommt. Diese stellen sich jedoch ein, wenn man nach Tagen
abends in Ruhe dariiber nachdenkt*

i

/

Ob e r leatnant *

Document NOKW—905, Prosecution Exhibit Page two of report of

shootings , signed by 1st Lt. Walt her, commanding the 9 th Company, 433rd
Infantry Regiment .

1140

IX. CLOSING STATEMENTS

A. Extracts from Closing Statement of the Prosecution 1

MR. Rapp: It is a challenging and formidable task for any
advocate to sum up a record of almost 10,000 pages in a trial
which has lasted for almost 7 months. When the panoramic
events of several years of military and political history in four
different nations are the subject matter of a judicial proceeding,
when nearly 700 prosecution documents (orders, reports, war
diaries, photographs, and even films) are introduced into evidence,
when 50-odd witnesses have personally appeared before the Tri-
bunal and more than a thousand by affidavit, then in summation
one can do little more than outline in incomplete highlights the
contents of this sordid and depraved text.

Many things may be said in future days about this trial. No
one enjoys the process of being tried and judged, and it would be
too much to expect from the defendants praise of the fairness and
detachment with which this litigation has been conducted. But
it must be obvious even to them that they could not have found
a more dispassionate forum anywhere in this world.

No matter what might be said by history about this proceeding,
of one thing we can be sure. No fair minded critic may ever say
that not all was said in these defendants’ favor which might have
been said.

It has been somewhat more than a year since the International
Military Tribunal handed down two historic decisions involving
the criminal responsibility of high ranking officers of the German
Army for the outrages of German troops during World War II.
In one, Keitel and Jodi were held to be as guilty as Goering and
Ribbentrop for the aggressive acts and wars, with their inevitable
consequences, that marked the period of German hegemony in
Europe. In the other, it was held that the group of military
leaders indicted as the German General Staff and High Command
was too amorphous a collection to be dealt with as a group or
organization. But in commenting on the evidence concerning the
guilt of individual German officers the Tribunal made this clear
and unequivocal pronouncement 2 3 —

“They have been responsible in large measure for the miseries
and suffering that have fallen on men, women, and chil-
dren. * * *

1 Complete closing statement of the prosecution is recorded in the mimeographed transcript,

3 February 1948, pp. 9557-9718.

3 Trial of the Major War Criminals, op. cit. supra, judgment, vol. I, pp. 278-279.

1141

“Many of these men have made a mockery of the soldier’s
oath of obedience to military orders. When it suits their
defense, they say they had to obey; when confronted with
Hitler’s brutal crimes, which are shown to have been within
their general knowledge, they say they disobeyed. The truth
is they actively participated in all these crimes, or sat silent
and acquiescent witnessing the commission of crimes on a scale
larger and more shocking than the world has ever had the mis-
fortune to know. This must be said.

“Where the facts warrant it, these men should be brought
to trial so that those among them who are guilty of these crimes
should not escape punishment.”

By filing the indictment here, the prosecution was in effect
carrying out the mandate of the International Military Tribunal.
The defendants in the dock all fit the description of those officers
whom the International Military Tribunal believed should not be
allowed to escape the consequences of the vile acts which they
either fathered, furthered, or allowed to be carried out by their
subordinates without a murmur of protest.

Since these crimes all occurred either in territory where active
fighting was taking place or in territory which was being occupied
by the German Army — since, in a word, they took place in areas
where the German Army constituted the only real source of politi-
cal or military power and where the only organizations of any
kind were either directly or ultimately controlled by the army —
it is only to be expected that the nature of these criminal acts
follows a more or less uniform pattern. Indeed, it would be sur-
prising if this were not the case. Most of these defendants, as
has been said, served on the Russian front before being trans-
ferred to the Balkans. One does not ordinarily expect to see a
total change of character and habits of thought effectuated by an
individual’s transfer from one place to another, especially if he
serves in the name capacity in both places.

Further, the nerve center of the entire German Army was in
Berlin, and German troops, wherever they were stationed, were
influenced to a certain extent by the broad policy directives w r hich
issued from the OKW, so that one would expect to find, as in the
case of any army, a certain uniformity of policy and, within a
broad framework, certain accepted ideas and methods of action.
The defendants, of course, seize on this unifying direction and
attempt to balance on the pin point of the OKW a whole absurd
inverted pyramid of argumentation to the effect that most of the
indefensible acts committed by their troops and auxiliaries can
be laid at the door of the OKW, and that they, who were mere

1142

lieutenant generals, generals, and field marshals, were completely
stripped of any discretion whatever. This tendency to minimize
their own importance is a characteristic which does not appear
in their biographies prior to the date the indictment against them
was filed.

We will deal with this newly developed self-abasement pres-
ently. What is pertinent for the moment is that this identity of
personnel, especially in the higher ranks in various theaters dur-
ing the course of the war, plus this centralized direction of policy
reduces the number of legal issues to be considered in this
litigation.

Especially in the case of the execution of hostages is the legal
issue simple and clear. The prosecution takes the position that
the killing of a civilian whose only proved offense is that he or she
lives in the neighborhood of a place where some unidentified
person did something which displeased the German occupation
power is simply murder, no more, no less. This seems to be a
principle which is utterly indigestible to the defense.

We might say parenthetically that it is rather amusing that
they, on the one hand, can argue with apparent seriousness that
it is perfectly legitimate to drag a man out of his house, stand
him up against the wall and shoot him without even asserting that
he is guilty of anything, and yet on the other hand, with an
equally straight face, they are able to quiver with indignation at
the outrage on their private rights which was perpetrated when
they were relieved of their medals by some souvenir collecting
GI in 1945. But this is only one of the many spectacles of moral
acrobatics to which we have been treated in the course of this
trial.

And the factual issues are really little more complicated. Lifted
out of the morass of detail with which the record is deliberately
and unnecessarily encumbered, the case is impressive in its sim-
plicity. The prosecution has had no trouble establishing that the
German Army carried out executions of innocent hostages and
other savagely disproportionate reprisal measures, that it killed
prisoners of war of lawful belligerents by the thousands, and that
it participated in the round-up and incarceration in concentration
camps of the Jews, gypsies, and other groups classified as inferior
by the philosopher friends of Hitler. It was easy to show that
the army often was used as a uniformed press gang to shanghai
foreign workers for the German war machine.

The only complication that arose was in showing where these
men were and what positions they held at a given point in time.
In order to do this, we have had to go up and down chains of
command like so many squirrels. We have had to go into the

1143

question of temporary absences from duty caused by sick leaves,
holiday leaves, emergency leaves, and every other sort of furlough
recognized by the German Army.

The accuracy of self-preserving personal diaries and preju-
dicial affidavits of orderly officers with amazingly unerring mem-
ories is somewhat more than questionable. But this defense
causes us little difficulty. The crimes perpetrated were on so
enormous a scale and so continuous in time that there is more
than enough to go round for each defendant. Even making allow-
ance for a few days’ or weeks’ absence from headquarters means
at best but a slight deduction from a still staggering totality. The
major characteristic which this proceeding has in common with
all of the other war crimes trials heard here in Nuernberg is
that the prosecution’s case is based principally upon captured
records of unchallenged authenticity which these very defendants,
and their closest subordinates and collaborators themselves pre-
pared, unwittingly and dispassionately enough, in the ordinary
course of their business of running a war. Ordinarily, in a
criminal case, documentary evidence plays a minor role. Most
of the proof consists of the oral testimony of the persons who
were present or near by when the crime was committed. But for
the prosecution to prove by oral testimony all of the murders,
and arsons, and unlawful arrests, and deportations committed
by the agencies which these defendants directed was quite impos-
sible for a number of reasons. In the first place, a person charged
with a crime is ordinarily tried within a fairly short time after
the act is committed. In a friendly country where the majority
of inhabitants are on the side of the law and the wrongdoer is
an outcast, the latter will, in the usual case, be readily appre-
hended. But it took several years before any one German general
could be called to account for atrocities committed by his troops
in the occupied territories of Europe. The bulk of the criminal
acts which have been the subject of this litigation were committed
between 1941 and 1944. The lapse of time and the press of
events which occurred subsequent to their commission in them-
selves made it impracticable to attempt to give the commission
of these acts by oral testimony.

Further, in the normal criminal case only one crime, or at the
most two or three, are charged against the defendant; and even
if more than one criminal act is involved, all of the acts will at
least have taken place within a reasonably small area. The courts
of one locality are generally spared the task of trying persons
who are charged with having committed crimes outside its usually
restricted borders. Here, on the other hand, we are dealing with

1144

a series of deeds which are only limited geographically by the
perimeter of the German Army's territorial conquests. It is not
even entirely accurate to use the term “series,” because some
of these crimes occurred simultaneously in different parts of
Europe. List and Foertsch, for example, were killing hostages
in Serbia at the very same time when Kuntze, Lanz, and Leyser
were executing commissars in Russia.

Finally, in the conventional murder case the prosecution is
usually able to find someone who was in the vicinity of the place
where the crime was committed and who lived to tell the tale.
Frequently, the murders which form the subject matter of this
litigation were committed in such a way that this is not possible.
When twenty hostages were marched out of a camp, stood up
against a wall, and shot by German troops, it was unlikely that
anyone except the German troops actually witnessed the scene
and lived to describe it.

The proof of the commission of a criminal act by documentary
evidence has certain advantages. It eliminates uncertainty and
avoids the hazards of human frailties which living witnesses are
heir to, such as poor memories, mistaken identifications, and good
or bad demeanor on the witness stand. It enables the prosecution
to be more detached and reduces the number of controversial
factual issues.

But unfortunately, though documents have some advantages,
they are not entirely satisfactory. The dry and dull figures of
hanged hostages, shot partisans, and helpers do not and cannot
reflect the destroyed homes, shattered hopes, the disillusionment,
and misery, and pathos that lie behind them. The human mind —
perhaps fortunately for our own ultimate well-being — is capable
of absorbing only so much tragedy. If one single murder is
brought into sharp focus we can take it in, comprehend, and be
moved emotionally. But when crime is piled upon crime, as has
been done in this case, we are in danger of losing our sense of
proportion, of allowing the meaning to blur, and our moral judg-
ment to become numbed and ineffectual. It is only by considering
a cumulative effect that one can shake off the anesthetizing influ-
ence of these documents upon one's reason and one's sensibility.

Recorded evidence is handicapped in another respect — docu-
ments cannot talk back. They cannot get on the witness stand
to annihilate some flimsy explanation, to correct some obvious
misinterpretation, or to contradict some outright lie. To the
extent that the prosecution's case is based on documentary evi-
dence, the defendant always has the last say. We can prove that
a defendant ordered a given excess to be committed and we can
prove that it was committed as a result of his order, but we can-

1145

not prove that the defendant did not read the order which he
signed or that he did not mean what he said.

But the prosecution’s case does not rest entirely on documents.
Despite the difficulty of seeking out and transporting witnesses
from the countries where these crimes took place, the prosecution
managed to produce some — a Yugoslav, five Greeks, and two
Norwegians. They were unsophisticated folk of the laboring
classes who simply described what they had seen done by German
troops under the command of these defendants. It is unlikely
that their memories were inaccurate. When a man sees prac-
tically all of his fellow villagers, including a good many members
of his own family, murdered before his eyes, it is probable that
the incident will make a sharp and indelible impression on his
mind.

Though the German firing squads missed scarcely a man in
Kragujevac during the 3 days that no Serb will ever forget, some-
how they failed to kill Zivojin Iovanovitch. He lived to relate
that 2,300 of his fellow townsmen were rounded up, marched off,
and sent to their deaths in the last of the three 100:1 reprisal
executions that makes October 1941 a blemish on German arms
that can never be erased.

By sheer good fortune, Stephanos Pappas was able to give an
eye witness account of the burning of his village of Konneno and
of the indiscriminate slaughter of his friends and neighbors. And
in what must certainly be the most miraculous and breathtaking
of all escapes, Takis Sipliopoulos told in quiet and subdued detail
the story of his own execution. Had one of Felmy’s executions
not chanced to omit the crucial coup de grace , one might never
have known of the massacre at Kalavritha.

The prosecution also used four German witnesses. These men
were grilled on cross-examination with particular severity, but
with negligible profit. It may be that one reason those witnesses
stood up so well was that they knew what they were talking about
in the first place.

General Felber certainly knew whereof he spoke when he dis-
cussed the nature and purpose of reprisal measures ; Bach-
Zelewski had more than enough experience to support his con-
clusions on the subordination relationship of higher police and
SS leaders to army military commanders; and General Ferdinand
Jodi demonstrated some courage in violating caste loyalty to
denounce his one-time commander in chief for militarily unneces-
sary devastation in Norway. Significantly enough, in spite of the
self-proclaimed opposition to national socialism of every last
defendant in the dock, it remained for the prosecution to turn

a 4.6

up, in Willy Finger, the only genuine anti-Nazi who appeared in
Court during this entire case.

Oftentimes German soldiers, not anticipating subsequent cap-
ture and search by the enemy, roguishly photographed their own
gruesome work. A number of these photographs were introduced
by the prosecution. Can he who had once" seen them ever forget
the stark horror of their reality: bent figures poised on the edge
of a shallow ditch with the raised rifles a moment before the
command to fire; the brutal beheading with an axe — in four
separate scenes — of a captured partisan; the scattered bodies at
Sabac and the German soldier calmly documenting the carnage;
the grinning army troops and the burning thatched village in the
background; the bodies grotesquely hanging from street poles
along the main street in Belgrade; and the revealing humor of
the postcard photographer of three men hanging from a tree and
the perverted caption, “Trees in Bloom in Serbia, Spring 1941.”

But notwithstanding the films on Greece and Norway and the
photographs and witnesses from Yugoslavia and Greece, the
prosecution has necessarily been forced to rely upon the veri-
chrome records, orders, and communications of the German Army
itself in order to prove precisely what the German Army did.
These records were kept with no thought of damning or exculpat-
ing either their authors or their recipients. They are the most
trustworthy evidence of the events to which they relate that can
be imagined.

Such is the general character of the prosecution's proof. What
has the defense adduced to meeet it? Principally, their evidence
has consisted of disquisitions by the defendants themselves. We
will take up the general burden of their song when we discuss
their common defenses. They have also brought in a number
of witnesses. Most of these defense witnesses have been former
subordinates of the defendants, whose self-interest and bias is
so palpable that it merits no extended discussion.

****** *

In addition, the defense has introduced several bushels of affi-
divits. A word about these would not be out of place. It was
obviously impossible for the prosecution to call all of these affiants
to the witness stand for cross-examination without prolonging the
trial for another 6 months. We, therefore, attempted to choose
a representative cross-section. Out of more than a thousand
affiants we selected 14 and requested that they appear in Court.
Twelve of them did. The result was very edifying.

*******

893964—51 75

1147

We turn now to the specific assertions and denials made by way
of defense. Since most of the defendants have sought sanctuary
in certain common arguments, repetition can be avoided if these
are taken up generically before going into the specific use which
each individual defendant tried to make of them. If a certain
standard defense is invalid on general principles, it evidently
is worthless in a particular application.

First, the defendants maintain that the documents do not mean
what they say. Several ingenious schemes have beeen contrived
to support this thesis. Among these is the “telegraphic style”
argument. According to this, the documents must be viewed
with caution and alarm because they contain numerous daily
reports which were sent either by teletype or radio and therefore
do not possess the same profusion of adjectives, modifying
clauses, and so forth in which we have luxuriated here for the
past several months. We can appreciate the abhorrence in which
these defendants hold a telegraphic style. After having listened
to them testify, it is obvious how painful it must be for them to
read or hear anything that does not bristle with semicolons,
prepositional phrases, and complex-compound clauses inserted
parenthetically into the middle of the sentence just to let the
speaker get his breath before he makes his last 400-word sprint
to the period. But the defendants profess that the brevity and
curtness of these reports leads to ambiguous interpretation.
Therefore, they have all testified that these reports are in large
measure completely incomprehensible to them. The answer to
this is that there were no complaints made about their clarity
and meaning at the time they were sent, and that they were
clear enough to enable the defendants and their subordinates to
operate the German Army.

But the telegraphic style argument, handy as it is, will not an-
swer every purpose. When a daily report states that “50 men were
standrechtlich erschossen” by German troops, there is not much
doubt that 50 men were shot and that they were not shot in com-
bat. When another report says, “200 people transferred to Zaza-
viza concentration camp” by a certain army unit, we have no
trouble comprehending what happened. Again, when a report
reads, “400 conscripted workers shipped off to Germany” by a
certain armed forces unit the meaning seems to be fairly clear.
The defendants dispose of this by the simple device of bringing
forth a new set of definitions. They assure us that we are con-
fused if we interpret these messages as meaning what they say.
The standrechtlich erschossen does not mean summarily shot,
but shot after court martial. “Concentration camp” does not
mean concentration camp, it means collecting camp. “Conscripted

1148

workers” really means voluntary workers. We have not been
furnished with a copy of the dictionary which the defendants
use but it would be interesting to know, for example, assuming
the term “concentration camp” really did mean something else,
what term should be used if the word “concentration camp” were
meant.

If the text of any given report is perfectly unambiguous and
if even the lexicographical talent which has been displayed here
cannot redefine it into incoherence, the defendants still have
several shafts for their bow. Generally, the first one to be shot
is the nonsubordination argument. In the area of command of
each corps and army, certain troops or groups of armed men
were stationed all of whom were assigned some part in carrying
out the German occupation but who were not technically part
of the army. Among these organizations were the Security
Police, the Einsatzkommandos and other elements of the SD,
the indigenous troops belonging to the armies of the puppet
states which the Germans had set up, as well as certain non-
uniformed guerrilla groups who were technically not part of
any army but who operated in close cooperation with the Ger-
man forces. In one report after another the butcheries and
plunders committed by these auxiliary organizations are de-
scribed. It can be seen from many of these reports that these
atrocities were committed while the group in question was in
the course of carrying out a certain operation under the tactical
command of or in conjunction with, the army.

In others, it is not specifically shown that at the time these
crimes were committed, the organizations involved were acting
with the army in achieving a specific aim but it does appear that
they were committing their atrocities within the area of a given
army division, and that they were sending constant reports to
that division on the nature and location of their activities. In
both cases, however, the defendants disavow any responsibility
for acts committed by these units.

But they go further than this in their disclaimer of respon-
sibility. A third class of reports exists. In these, a given army
division merely reports to its corps headquarters that 50 hos-
tages have been hanged in a given locality within the divisional
area. Nothing more is said. In every case where the daily
report does not fix with certainty the company or battalion or
regiment which pulled the trigger or tied the hangman's knot,
the defendants have argued that these things were probably done
by the SS, or the SD, or the police or the Ustasha, or the Kosta
Pecanac Chetniks, or the Evzones, or some other unit which

1149

was either not subordinate to the army or else was subordinate
only for “tactical” purposes.

There are several answers to this argument. First, it is the
prosecution's contention that when the 173d Reserve Infantry
Division reports that 50 hostages were hanged and 50 shot on
the same day within the divisional area and makes no mention
of any of these other organizations in that connection, it is to
be fairly inferred that some unit of the 173d Reserve Infantry
Division did the hanging and the shooting. The defendants all
deny that this was so. They say that the division reported every-
thing that happened within its area, whether it was done by
the division or not, and that unless the report puts the finger
squarely on the second platoon of company C of the 1st battalion
of the 1st regiment of that particular army division no respon-
sibility can be fixed.

We submit that this is an affront to common sense. Time and
again these defendants have testified to the way that indiscrim-
inate mistreatment of the population and ill-advised executions,
arrests, and deportations by the police and the SD merely added
to the army's difficulties in keeping the population pacified and
subdued. On the other hand they have testified one after the
other that reprisal measures properly directed and carried out
with sufficient force had a most salubrious and soothing effect
on the natives.

Now, assuming what they have said to be true, does it make
sense that an army division, in reporting the execution of a re-
prisal measure within its area to corps headquarters, would
simply report that 100 people had been hanged if it thought
that corps headquarters would have any doubt as to who had
done the hanging? If this had been the case, the reports would
have been less than meaningless. Corps headquarters would have
had no way of knowing, when it received intelligence of the
occurrence of one of these massacres, whether to expect calm and
tranquility in that particular area for a while or whether to
anticipate new outbreaks of rebellion, acts of sabotage, and
attacks on German troops and installations. Moreover, when a
particular action was committed by any of these extraneous
agencies, the division's report precisely said just that. We con-
tend that the only sensible interpretation to be placed on one of
these reports made by an army division in which the carrying
out of a reprisal measure is described is that the reprisal meas-
ure in question was carried out by that division, unless some
other group is specifically named, and that in fact corps head-
quarters when it received such a report placed that identical in-
terpretation on it.

1150

But let us, as devil's advocate, assume for the moment that
the chaotic system which the defendants claim was actually
followed in making these reports and that corps headquarters
or army headquarters, when it received the news that a few
hundred hostages had been liquidated in the area of a certain
division, had no way of knowing who had ordered and carried
it out or what its consequences were likely to be. Are these
defendants to be exonerated from responsibility for these out-
rages which were committed by their satellite organizations?
When the relationship between these organizations and the army
is examined it will be seen that it was the army authorities and
no one else who were in a position to forbid, avoid, and prevent
those slaughters from being committed.

First, let us take the relationship between the army and the
Croatian Domobrans. Shortly after the Germans invaded Yugo-
slavia the so-called independent state of Croatia came into being.
As one of the defense witnesses said, “Germany created the state
of Croatia." It was and remained a puppet state of the expan-
sive Third Reich. Any doubt as to this would be quickly quieted
by the tone of unctuous servility in which the communications
addressed by the Croatian Government to the army occupation
authorities were couched. The convenience of establishing such
a state from the German standpoint is so obvious that it scarcely
need be mentioned. By this simple device the German Army
transformed itself from a conquering army stationed in occupied
territory to an “allied" force invited to remain in the common
struggle. As such, it could step out from under its obligations
to the civilian population. As such, it could sponsor the forma-
tion of a Croatian Army to be used for its own purposes while
at the same time masking its own reeking activities behind the
facade of Croatian marionettes.

The nature of this parasitic regime, made up of jackals and
scavengers who would stop at nothing, not even the murder of
thousands of their innocent countrymen for the few bones
which fell from the German table, is so evident that one wonders
how anyone can stand in this courtroom, as at least six persons
have already done and as three persons will certainly do during
the next several days, and hold forth to this Tribunal about the
“independent Croatian Government."

But we are not so much interested in the general nature of the
Croatian Government as we are in the relation which the Croa-
tian troops bore to the German commanders. To begin with,
the Croatian Army was organized and trained by the Germans.
Their officers and men, as the documents here show, were
screened by the Germans so that all “unreliable elements" could

1151

be purged. Once they were trained, they were then equipped
and armed by the Germans, and then sent to their permanent
stations by the Germans. Now, since all of the “independent
state of Croatia” was included in the area of one of the three
German army corps stationed there, and since each of those
corps were divided into divisional areas, no matter where the
Croat troops were stationed they were bound to be in the area
of some German division. Within the divisional area, the Ger-
mans indicated where the Croat troops were to be stationed
and what their tasks were to be, whether it was the guarding
of a bridge by a Domobrans unit or the patrolling of a railroad
line by a detachment of Ustasha.

Then, from time to time, the Croat units would be notified
that the German troops intended to carry out a certain tactical
operation. Usually these operations consisted of “mopping-up”
or “combing out” certain areas in an effort to reduce the activi-
ties of the partisans, either by destroying their hospitals and
bases of supply or by arresting all the able-bodied men in the
locality. The Croat troops in such an operation were assigned
a certain definite role to play in conjunction with the German
troops. When the operation was finished, the German divisional
commander would then instruct the Croat troops to take up
their old stations and resume their railroad security activities
or whatever else they had been doing.

This is what Rendulic, Dehner, and Leyser mean when they
say that the Croat troops were not “subordinate” or that they
were only “tactically” subordinate to them. It is precisely what
Lanz, Felmy, and Speidel mean when they correspondingly deny
responsibility for the excesses of Greek “volunteer” units. In
both cases the evidence is irrefutable that these sets of gangsters
were, from start to finish, no more than the uniformed tools
and hirelings of the German Army. Dehner and Leyser repeatedly
protest that they could not order a member of the Domobrans
to be tried by a German court martial. In that, they may be
technically correct — but neither, for that matter, could they
order a German soldier to be tried before a court martial. Only
a divisional commander could do that. But who is so naive as
to believe that a divisional commander dictates to his superior
at corps headquarters? The record here shows that the power
of the German corps commanders in Croatia was such that they
could even remove the Croatian civil officials when it pleased
them. It is utterly fantastic for them to say that they could
take no measures to curb excesses committed by these Croatian
janizaries.

We have singled out the relationship between the Domobrans,

1152

which was the regular army of the Croatian "independent state/'
merely as an illustration. What we have said about them applies
with equal force to the Ustasha, the Croatian counterpart of
the Waffen SS. It applied with perhaps even more compelling
force to the groups of Serbian nonuniformed irregulars — the
Kosta Pecanac, Danzic, and even certain branches of the Mihailo-
vie Chetniks — who were armed and used by the German Army
whenever it suited their convenience. It applies, in short, to
all of the countries in southeastern Europe in which the Germans
set up puppet regimes and used indigenous troops to murder
their compatriots. The relationship between a principal and an
accessory before-the-fact to murder does not depend on the word
"subordination", and the use of that term as these defendants
here attempt to apply it to these indigenous troops is as false
as the premise upon which it rests, i.e., the myth of the independ-
ence of these puppet governments which were installed and kept
in power solely at the whim of German arms.

The defendants seek also to escape responsibility by the use
of their famous subordination principle for the acts of units
of police troops which operated within their areas of command.
The witness Korn exploded the theory of the independence of
the police troops from army jurisdiction. According to him,
during the 18 months he was in the Southeast the police troops
only once carried out an operation alone, that is to say, without
the help of the army. The police troops received their ammuni-
tion, transport, and supplies from the army and it was impossible,
he said, for the police to carry on an operation of any size or
importance without first obtaining the consent and approval
of army authorities. This is fully borne out by what the wit-
ness Bach-Zelewski had to say of the close cooperation between
the police troops and the 1st Cossack Division in the course of
Operation "Arnim.” The defendants say that they were not
informed of the activities of the police, but the documents show
that the police periodically reported to the army on precisely
what they were doing.

The defendants say that they and their army subordinates
protested against the activities of the police from time to time.
They may have done so, but that their protests were not based
on any humane considerations was shown by the testimony of
one of the defendant's own witnesses, General von Behr, who
testified that he as divisional commander objected to the activi-
ties of the police only because they were not carried out with
enough troops to be really effective. In other words he was
not protesting against the severity of the measures taken by the
police, but because they were not severe enough. Of further

1153

importance is the significant fact that evidence of these pro-
tests is strangely missing from the captured German army docu-
ments.

The next group which operated within the area of the armed
forces command were the Einsatzkommandos of the SD. The
defendants now disclaim any responsibility for what these
people did and say that they had no idea of their operations,
and no means of curbing them even if they had known. This,
of course, flies into the teeth of the many documents here which
show that on most of the large scale mopping-up operations
carried out by the army, units of the SD were attached to each
army unit for the purpose of screening the inhabitants, clean-
ing up the rear area after the army troops had advanced, and
taking care of the persons who were arrested and who were
subsequently to be tranferred either to concentration camps
or hostage camps or shipped off to Germany for forced labor
in factory and mine. The SD was the most murderous and
dreaded organization in Germany, with the possible exception
of the Gestapo, and it is understandable that the defendants
are a little sensitive when it is pointed out that the German
Army and the SD frequently worked in close cooperation. But
the proof showed beyond any doubt that close harmony existed
between the two organizations and that when the army had any
need for the special services which the SD was so expert in
furnishing, they joined hands and worked together as on a
common enterprise.

Finally, the defendants seek to throw as much of the blame
for this complex of outrages as possible on their favorite whip-
ping boy, the Waffen SS. Here again it is claimed that the
army had no authority over the SS except in a purely “tactical”
sense. One example is sufficient to show how elastic this term
“tactical subordination” is, as used by the defendants. The
Court will remember General von Leyser’s description of the
partisan attack on an armed truck convoy in Albania, in the
course of which three German female employees who were
being evacuated from Tirana were captured. From the war
diary of the XXI Mountain Corps we discover that an SS Ober-
fuehrer has ordered an SS major to burn down some villages
in the locality of the attack and to kill the population. The
report goes on to say, “The approval of the corps is still miss-
ing. Major Frank asks whether the corps agrees to the carry-
ing out of these reprisal measures and asks for an immediate
reply.” Two days later a report shows that the SS Division
Skanderbeg is holding hostages, who were presumably seized
in connection with this same attack. Still later, we find corps

1154

headquarters directing the SS Division Skanderbeg not to carry
out the shooting of 50 hostages, because such an action might
jeopardize the negotiations with the partisans for the return of
the three German women.

Now, if the SS was only “tactically subordinate” to the army,
then we can only conclude from this report that the shooting
of hostages and the burning down of villages are to be con-
sidered as strictly tactical measures. Obviously, the SS would
not have asked the corps for permission to do these things un-
less it was necessary to obtain permission from the army before
doing it. This one representative example, an illustration which
could be multiplied many score, will suffice.

SS atrocities occurred not in spite of army opposition but
because they were an integral part of, and consistent with,
German Army occupation policy. But even when “disciplinary”
as opposed to “tactical” jurisdiction of the army over one of the
conventional scapegoat agencies is proved — as was the case with
Felmy and the Rosenberg detachment operating within his area
of command in southern Greece in 1941 — then we are told, sur-
prisingly enough, that “disciplinary” authority is of no particular
importance since it refers only to such minor questions as proper
dress, military courtesy, and the like. Thus, when army com-
manders have it, “disciplinary” authority is essentially unimpor-
tant, but when they don't have it, it assumes proportions of im-
portance limited only by the defendant's endurance and vehem-
ence of speech.

The Tribunal should keep in mind in considering all of these
attempts to shuttle the responsibility from the army to one of
these other organizations that we have been told time and again
by these defendants and their witnesses that within a given
divisional area the division commander was held primarily re-
sponsible for everything that happened and that he was the
highest German authority there. The same was true of the
corps commanders to an even greater extent. The German Army
was always by far superior in numbers, power, prestige, and
influence to any of the other units which have been mentioned.
The fact that the police, the SD and indigenous troops are named
in these reports show that the army authorities were kept fully
posted on their activities. Without the full knowledge and con-
sent of the army these organizations could not have come into
a given divisional area at all, much less functioned independently
after they got there.

The picture which has developed from the exaggerations made
by these defendants in their effort to shift responsibility from
the army to other agencies is completely ridiculous. We are

1155

supposed to believe that within any given sector assigned to an
army division, there were all sorts of odd groups — police, SS, the
SD, various units of indigenous military and semi-military per-
sonnel, and even certain elements of the armed forces, themselves,
such as parts of the notorious Brandenburg Division, wandering
around, stumbling over each other, getting in each other's way,
and working at cross purposes. They would have us understand
that these units simply marched over the division area at ran-
dom, hanging, shooting, burning, and plundering without giving
the division any idea who and where they were, what their
purpose, and how they were achieving it. Merely to sum up
this description is enough to demonstrate its absurdity. If this
were actually what took place, then it would have been the Ger-
mans much more than the Croats, Serbs, Albanians, or Greeks
who were the partisans. The truth is, as we have already shown,
that the commanding officers of the army possessed all of the
power necessary to restrain these auxiliaries and they not only
had the power but also the duty, since it was they who were
primarily responsible for maintaining peace and security within
their areas of command. Since they had both the power and
the duty to prevent these outrages, it is they and no one else
who should be held accountable for their having occurred.

We pass on now to the next excuse offered by the defendants —
that they were ignorant of the commission of these crimes. When
they are asked to explain a daily report from one of their subor-
dinate units which mentions the burning down of several villages,
or the hanging of a dozen-odd hostages in reprisal for an attack
on a truck convoy or a railroad blasting, they say it is very diffi-
cult for them to do this, because although this report was made
to their own headquarters they did not read it and only saw it
here at Nuernberg for the first time. How often have we listened
to that enervating chant, “I learned of these things for the first
time here in this courtroom."

*******

But it is not necessary to go into a detailed analysis of all the
wonders to which we have been treated in the course of the
attempts made to bolster these professions of ignorance. These
men were the highest ranking members of the German Army
within their respective areas. But even if they did not know
of this constant campaign of terror and murder of the civilian
population being carried out by their troops, reports of which
were being sent to their headquarters at least daily, and usually,
twice a day, it makes no difference from a legal standpoint.
They were charged with the duty of knowing it. It was their

1156

business to know what was being done by their troops, and they
cannot escape the responsibility for these atrocities by saying
that they did not bother to read what was furnished them for
the specific purpose of allowing them to know. This interpreta-
tion of the duty of a commanding officer is not novel. In United
States vs. Oswald Pohl, et al. [Case No. 4, Vol. V this series ,
p. 101 1], the Court said, “The law of war imposes on a military
officer in a position of command an affirmative duty to take such
steps as are within his power and appropriate to the circumstances
to control those under his command for the prevention of acts
which are violations of the law of war.” That Tribunal pointed
out that the Supreme Court of the United States had already
announced this principal in the Yamashita case.

Another popular fable is the sick leave or holiday explanation.
This is given in two different situations. In the first one, the
defendant formulated an order for some criminal acts, passed it
on to his subordinates and then went to the hospital or took a
few days’ leave. In this courtroom he takes the position that
no blame can be attached to him if he was not actually sitting
in his office at the time the culpable act was carried out. That
such an argument is even put forward shows the desperation
of the person making it. If a terrorist leaves a time bomb with
a 24-hour fuse in a London railroad station and 10 people are
subsequently killed by the explosion, it is hardly a legal defense
to the charge of murder that the man who planted the bomb was
in Dublin when it went off. This is precisely analogous to the
argument which the defendants make here.

Then there is another situation in which the holiday or sick
leave argument is advanced. Here the defendant himself did
not actually give the specific order before he left his headquarters.
It was given either by his chief of staff or by whoever happened
to be his responsible deputy during his absence. The defendant,
therefore, disavows any responsibility for the order even though
upon his being advised of it, he took no steps either to rescind
it, to reprimand the officer who actually signed it, or to forbid
the issuance of similar orders in the future.

Now one can well imagine the subsequent fate of a subordinate
who, having temporarily taken over his superior’s duties during
a short absence, attempted during that time to issue an order to
kill people without having first assured himself that any orders
of this kind would meet with his superior’s full approval and be
ratified and defended upon the latter’s return. Yet these de-
fendants seriously argue that every time they went to the hos-
pital or to the homeland for a few days their chiefs of staff
or deputies not only issued orders without their knowledge and

1157

approval, but indeed issued orders which effected a complete
reversal of all policies which had been announced and followed
previously. If this had been the case, it would have been neces-
sary for every commanding officer in the German Army to stay
awake and alert 24 hours a day, 7 days a week, in order to in-
sure against one of his subordinates bringing about a complete
shambles every time he turned his back.

This last variation of the holiday-sick leave argument is merely
one of a number of means which have been employed in an effort
to achieve the same end. The end is not very pretty, but then
these defendants are in no position to pay too much attention
to aesthetic considerations. The aim is simply to shove the
responsibility for these crimes on to their fellow officers in the
German armed forces. They will first try to place the onus
on the police or the SS, but if that maneuver is too farfetched,
they then cast about to find some other German army officer
to bear the blame. As was to be expected, their first choice for
the role of scapegoat is generally some officer of lower rank than
their own, such as a divisional commander. But if that is not
feasible, then as a last resort they say that the responsibility rests
with their superiors. Then does every defendant, be he a full
army or but a corps commander, conveniently place himself in a
pivotal position from which he can, as the winds seem to blow,
pass criminal responsibility either up or down the military
pyramid.

Now this is all a ticklish business, of course, and has to be
approached with care and circumspection. It is not strategically
advisable simply to blame any superior officer who may be lying
around handy. After all, the German Army must be vindicated,
and that aim cannot be accomplished if all of its high ranking
officers are to be smeared with accusations of participating in
the kind of indefensible butcheries that we have heard discussed
here. So a technique has been devised to meet the requirements
of the delicate situation. In blaming their superiors, the defend-
ants here have been careful to do one of two things: they have
either phrased their language in vague, corporate terms by say-
ing that the High Command of the Army or the OKW was
responsible, without naming particular individuals ; or else, if it
seemed more expedient to unload the blame onto a specific indi-
vidual, they have been careful to choose individuals who are dead.

First, take the case in which their subordinates have been
selected to bear the responsibility. This excuse is patently based
upon a deliberate distortion of the whole concept of military or-
ganization, not only as it was known in the German Army but
in every army in the world. When the general of an army issues

1158

an order, it is to his corps commanders that he looks for its
execution. If the order is disobeyed or clumsily carried out, it
is the corps commander who is called on the carpet. Perhaps the
order was not carried out because some major general was dere-
lict in his duty. Possibly the fault is really that of some colonel
or major.

But an army commander is not disposed to be interested in
first causes. It may be that for want of a nail the shoe was
lost and that eventually for want of the shoe the battle was lost.
But neither the blacksmith nor the horse is held accountable
by the commanding general. He is not interested in hearing
that an order miscarried because of the obstinacy or stupidity of
a divisional commander. If a corps commander attempted to
render such an explanation he would be told nine times out of
ten that it was his job to have discovered the divisional com-
mander's inadequacy long before and to have sacked him and
replaced him with some more capable person.

This is not only the practical way in which an army operates
but it is the only logical way. All armies are pyramidal in their
organization. There is not time for an army commander or an
army group commander to call a convention of all his divisional
and regimental leaders every time he issues an order. The func-
tion of the corps is to make this unnecessary. The corps com-
manders are told what they are supposed to do and there, so far
as their superior is concerned, the matter ends. If this were not
so, the phrase “chain of command" would have no meaning.
Aside from the fact that it is more than a trifle cowardly for
these men to try to shift the responsibility to their subordinates
for having executed orders which these men passed on after they
were received from higher headquarters, the whole concept is
grotesque.

Then take the case in which they have blamed their superiors.
The prosecution has already pointed out in its brief that the
plea of superior orders is no defense at all. We shall not repeat
here the abundance of authorities which we have already cited
in support of our position on this legal issue. But a few remarks
should be made with reference to some of the testimony on the
subject.

The defendants themselves have not been consistent in the
stand which they have taken on the issue of obedience to superior
orders. Several of them are charged with having carried out
the notorious Commissar Order. Every one of those has stead-
fastly denied that troops under his command summarily murdered
political commissars in compliance with that unquestionably crim-
inal mandate. All have admitted having received the order or

1159

at least having been apprised of its contents. Now it should be
remembered that the Commissar Order was a Fuehrerbefehl, which
is to say that it was issued by the highest possible authority.
Yet the defendants say that they deliberately neglected or re-
fused to obey it because they felt it was illegal, unsoldierly, and
inhumane, or because they believed it would have the precise
opposite effect from that which was intended. In that matter
they insisted upon substituting their own judgment for that of
Adolf Hitler and Field Marshal von Brauchitsch. Yet the very
defendants who have testified in that vein about the Commissar
Order have said that they had no right to forbid or discourage
the shooting of hostages because hostage executions had been
ordered by the OKW.

Another general observation might be made about the testi-
mony which has been offered on the superior order defense. Ex-
cept for Brigadier General von Geitner, the lowest ranking de-
fendants in this dock were lieutenant generals who commanded
between 50,000 and 100,000 troops. Career officers who spent
their lives learning their profession, they obtained their rank
because in the opinion of their superiors they possessed the in-
telligence and judgment which the responsibility of such a posi-
tion demanded. Within the framework of the broad directives
given to these men, they were allowed and expected to exercise
a wide discretion in carrying out their duties. We could hear
testimony until doomsday that a lieutenant general or a general
or a field marshal was only a loud speaker through which the
commands of his superiors were amplified or echoed and it would
still not be convincing.

If these men had disagreed with the policies which were being
executed within their respective spheres of command, whether
such policies affected the treatment of the civilian population, the
discipline of the German troops, or the political and racial pro-
grams behind the directives handed down from higher echelons,
that disapproval would have manifested itself immediately in a
hundred different ways. If they were the tools through which
the murderous theories of Streicher, Himmler, and Hitler were
implemented, it was because their compliance was completely
voluntary. The criminal liability for what they did cannot be
shunted up the line.

A corollary of the superior order defense is the one predicated
upon the assumption of the legality of orders emanating from
Hitler and the OKW. Every defendant, without exception, has
said that when such orders reached him, it never occurred to him
to question their legality no matter what the subject matter or
how severe the measures prescribed. They argue that there was

1160

a multitude of legal experts at OKW headquarters in Berlin and
that they could not be expected to doubt that every OKW order
had been subjected to the scrutiny of these jurists before it was
sent out.

One would have to be credulous indeed to believe that profes-
sional soldiers with decades of active service and the experiences
of a previous World War behind them were so ignorant as not
to know that orders which denied the belligerent status to their
enemies, which forbade the taking and indeed commended the
execution of prisoners of war, and which established arbitrary
hostage execution ratios of 50 and 100 to 1 were in patent viola-
tion of every recognized standard ever set by civilized nations
for the conduct of warfare. This plea would have no validity as
a legal defense even if we believed them. The maxim ignorantia
juris non excusat is as well recognized by the criminal codes of
the continent as it is by Anglo-American law.

But how can one possibly accept this argument as sincere?
High ranking military judges were readily available at army
and division, and in Lanz’ case even at corps headquarters if
legal advice had been desired, which it clearly was not. More-
over, none of these very defendants, as they were eager to point
out, assumed that the Commissar and Commando and Military
Mission orders were valid, even though they, too, stemmed from
the evil triumvirate in Berlin. Nor, on other occasions, when
they were anxious to demonstrate their basic humaneness, did
they hesitate to describe their misgivings about those same hos-
tage, reprisal, and band warfare regulations whose legality they
insist had to be presumed. Consistency is a word which apparent-
ly is not found in their dictionary.

Along with superior orders, military necessity is the most basic
of the defenses herein advanced. This defense is almost always
yoked together with a long description of what the defendants
call "Balkan mentality/' We have been told that this peculiar
"Balkan mentality" is incomprehensible to the western European
mind ; that all of southeastern Europe is populated by uncivilized
savages who are and were incapable of appreciating the finer
things of life such as the presence of 20 or 30 divisions of German
troops whose only purpose was to act as missionaries of culture
and to protect these helpless people against an invasion by the
American, British, or Russian "enemy." We have been told that
the disappointing response of the Balkan peoples to all the ad-
vantages of a German occupation was proof in itself that that
occupation was a positive boon to the region. The Serbs, Croats,
Montenegrins, Albanians, and Greeks have been depicted as hav-
ing had only one desire — to murder as many Germans and as

1161

many of each other as possible. We have been informed that
the racial and religious hatreds which exist between the various
groups in the Balkans are so deep-seated and bitter that had it
not been for the Germans they would have annihilated each other
wholesale. This is the picture of "Balkan mentality" as the de-
fendants have painted it.

From this they go on to say that in dealing with such a situa-
tion ordinary measures were insufficient. To the last man, all
of these defendants have testified that in their opinion it was
impossible to govern in Yugoslavia and Greece without the use
of reprisal measures. The execution of hostages, the burning
of villages, and the shooting of captured partisans was, there-
fore, a case of military necessity.

The argument of the defense of military necessity is uncon-
vincing here for several reasons. In the first place, it is the
prosecution's contention that the plea of military necessity can
never be used as a defense for the taking of an unarmed civilian's
life, if he is innocent of any hostile conduct against the occupy-
ing power. Paragraph 24 of the American Army Field Manual
[FM 27-10, 1940, Rules of Land Warfare] correctly states the
accepted definition of that term in international law. It reads :

"* * * Military necessity admits of —

"a. All direct destruction of life or limb of armed enemies,
and of other persons whose destruction is incidentally un-
avoidable in the armed contests of war."

The emphasis of the word "armed" in the text necessarily ex-
cludes from the class of persons whose killing may be justified
on the grounds of military necessity persons such as those who
were used by the German troops as hostages.

In the second place, it is inconsistent to attempt to defend the
same action by the plea of superior orders and also by that of
military necessity because the two are mutually exclusive. If
an act was committed solely because of superior orders, then
presumably there was no military necessity for doing it; where-
as if it was done because of military necessity, it would have been
done anyhow regardless of the existence or nonexistence of
superior orders.

In the third place, the defense of military necessity flies into
the teeth of all the available evidence here. In addition to the
oral testimony of such witnesses as General von Greiffenberg,
Bach-Zelewski, and even General Winter, there are among the
documents many complaints made by responsible German officers,
who pointed out that the technique of reprisal measures had
proved to be a boomerang in that it resulted in a stiffening of

1162

partisan resistance in the areas where these measures were
carried out.

We need not here go into a long refutation of what the defend-
ants have said about “Balkan mentality.” They were not in a
position while in the Balkans to get a very clear or detached
view of it, any more than the Balkan peoples were able to view
from a favorable vantage point what could be conceivably argued
to be a unique German mentality. The mentality of the Serbs,
the Croats, and the Greeks was undoubtedly a source of frustra-
tion and bafflement to the defendants, just as perhaps the British
mentality was. Whatever the present or future relations between
the United States and the governments of Yugoslavia, Albania,
and Greece may be, the tenacious and inextinguishable spirit with
which these people resisted the German occupation, sustained
for two long and bitter years only by their own determination,
will always be remembered as one of the greatest demonstrations
of courage displayed during this or any other war. Resistance
against enslavement has absorbed a good deal of these people’s
time during the past 100 years. It has been less than a century
since the Serbs and Greeks threw off the Turkish yoke, and
scarcely more than 2 decades have passed since those same heroic
Serbs battled unaided for almost 4 years against the armies of
the Triple Alliance. The Germans knew this, of course, when
they invaded Yugoslavia, but these defendants and their brother
officers thought that by applying von Clausewitz’s theory of un-
restricted warfare with sufficient ruthlessness they could break
the spirit of these long suffering people as even the Turks had
failed to do before them. The long record of crimes which have
been described at the bar of this Tribunal are the natural result
of the practical application of this method of restoring quiet to
the Balkans. It not only failed but it stirred up such a hornet’s
nest of resistance that tens of thousands of soldiers desperately
needed elsewhere were immobilized to do nothing but garrison
and police duty — all because of this obstinate “Balkan mentality.”

The contention predicated and the allegedly binding effect of
the surrender of the Greek and Yugoslav armies is just as in-
firm as the other so-called defenses. General Tsolocoglu who
signed the capitulation agreement on the part of the Greek Epirus
Army was not the commander in chief of that army but only its
deputy commander in chief. Further, there is no evidence what-
ever that Tsolocoglu was authorized either by the Greek Govern-
ment, headed by King George II, or by the actual Commander in
Chief of the Epirus Army to sign that capitulation agreement.
The defense had not even attempted to prove who signed the
capitulation agreement on behalf of the Greek Thracian Army

893964 — 51— -76

1163

or that that capitulation too was authorized by the Greek Govern-
ment.

The situation is even clearer in the case of the capitulation of
the Yugoslav Army. The surrender agreement there was signed
by the former, and deposed, Foreign Minister of Yugoslavia,
Cincar Markovic. The Commander in Chief of the Yugoslav
forces, General Simovic, who was simultaneously Prime Minister
of King Peter’s government, not only did not sign the agreement
of surrender of the Yugoslav armed forces but had previously
fled the country along with the rest of his cabinet for exile in
England. In this case not even the deputy commander in chief of
the Yugoslav armed forces, General Kalafatovic, signed the agree-
ment of surrender to the Germans. So much for the facts re-
garding the defense based upon the capitulation of Greece and
Yugoslavia.

The legal theory of the defense on this point seems to be this —
when an officer signs an agreement of surrender, even though he
is not only not authorized but specifically forbidden from doing
so, then it is unlawful thereafter for any of that officer’s coun-
trymen under any circumstances to take up arms against the
conquering power. If this reasoning is valid, then all of the
American forces in the Pacific after April 1942, could have been
treated as francs-tireurs simply because General Wain wright,
their fellow American, had surrendered on Corregidor. Before
the defendants can justify themselves for having refused to
accord belligerent status to a particular partisan on this ground,
it must first be shown that the partisan in question had formerly
been a member of the Yugoslav Army and was, therefore, con-
structively bound by the surrender agreement. One need not
labor the obvious by remarking that no such proof had been
offered.

The defense with respect to these capitulation agreements has
still a further flaw. It was said that following the collapse of
Greek resistance in April 1941, the Greek prisoners were allowed
to return to their homes with the understanding that they would
not in the future take up arms against the conqueror. Prisoners
of war, who are set at liberty on parole, are bound, on their
personal honor, scrupulously to fulfill the engagements they have
contracted. Presumably one of those engagements which the
surrendered Greek soldiers contracted to fulfill, though the evi-
dence is flimsy to say the least, was to never again take up arms
against Germany. But even if any evidence of such a parole
agreement at the time of the surrender of the Greek forces had
been made by the defense, it would not be binding here for several
reasons. First, prisoners of war may be set at liberty on parole

1164

only if the laws of their country allow and there has, of course,
been no proof of what Greek law is on this matter.

Furthermore, there can be no parolling on the battle field, no
parolling of entire bodies of troops after battle, and no dismissal
of large numbers of prisoners by a general declaration. Even if
one accepts the scant proof offered by the defense on this point,
it can scarcely be doubted that this forbidden type of parole was
exactly the kind that the German Army there adopted at the
time of the Greek surrender.

In addition, a prisoner of war cannot be compelled to accept
his liberty on parole nor is the hostile government obliged to
accede to the request of a prisoner to be set at liberty on parole.
There has been no proof that the Greek Government in exile ever
consented to or ratified the discharge of captured members of the
Greek Army on parole — even if there was any such discharge on
the part of the German Army at that time. The only evidence
adduced by the defense would indicate that the Greek prisoners
of war were merely disarmed and sent home without further ado
to save the German Army the trouble of feeding them.

Further, the conqueror has certain duties and obligations to
perform to the conquered even in a case of an unconditional
surrender. The making of an unconditional surrender does not
free the victor from his obligation to observe international law ;
and when the Germans commenced their campaign of indiscrimi-
nate shootings and hangings of the civilian population, even
former members of the Greek and Yugoslav armies — who had
given their individual paroles, if such there were — were perfect-
ly justified in using whatever means they could to rid their coun-
try of this plague.

The last of the common defenses is to the effect that since the
partisans were not entitled to the status of lawful belligerents,
the German Army was not bound to follow the rules and customs
of war in combating them. The defendants themselves have
skirted the fringes of some of the subsidiary arguments involved
here rather cautiously. For example, none of them has been will-
ing to rest his contention that the partisans were unlawful upon
any one ground.

In the face of the German intelligence reports concerning the
organization, strength, armament, and location of the partisan
units, the names of their officers, the elaborate courier, postal,
judicial, and governmental administrative systems in force in
the large areas under their control, it is hardly arguable that
the partisans were not a regular and highly effective military,
political, and economic organization which is the basic test for

1165

determining whether an enemy group is entitled to the status of
a belligerent.

The defendants have realized how feeble it is to maintain that
the partisans were not militarily organized and have fallen back
on the completely irrelevant complaint that the designations
which the partisans gave to their units, such as battalions, regi-
ments, and brigades, did not correspond to the German nomen-
clature. It is perfectly apparent that in Yugoslavia, for instance,
the partisans had a perfectly well defined chain of command which
went from Tito down to every company and platoon. If from
time to time a small unit of partisans was cut off from the main
body of troops to which it belonged and was unable to communi-
cate with them, they were no more disorganized for that reason
than were segments of the German Army which were frequently
in the same situation.

It is unnecessary for us to take up here the other subsidiary
contentions which have been made — those to the effect that the
partisans were not in uniform, did not carry their arms openly,
and systematically violated the laws and customs of war. It
is enough to say that the evidence which has been produced to
support such arguments smells very strongly of ex post facto
justification. Time after time the documents mention that the
partisans wore uniforms or readily identifiable insignia. The
defendants say that this may have been true, but that the uni-
forms were not standard; that the distinguishing insignia of the
Tito and Mihailovic partisans in Yugoslavia and the Edes and
Elas Andartes in Greece were not identical; that some of them
wore parts of German, Italian, British, and American uniforms.
But what possible factual difference could that have made then,
or what legal difference now? The Hague Rules prescribe no
standards of sartorial elegance. The object of the rule requir-
ing the use of a uniform is to enable a combatant to recognize
his enemy. And in Yugoslavia or Greece it was distinctly under-
stood that anyone who wandered around in a uniform had in-
vited himself to become a target, regardless of its cut or color.

The fact of the matter is, of course, that no matter how ele-
gantly the partisans had dressed, they would have been shot upon
capture in any event. List made that incontestably clear when
he admitted that un-uniformed Kosta Pecanac Chetniks were
permitted to collaborate with German troops against the Tito
and Mihailovic partisans, and Foertsch was even more forthright
when he testified that the German Southeast Command con-
cerned itself only with considerations of military expediency and
not the Hague Rules in dealing with the partisan problem.

1166

One word as to the testimony about partisan tactics. One ex-
amines the official reports and records of the German Army in
vain if his object is to find descriptions of mutilations inflicted
by the partisans. Yet the defendants have produced several
pounds of affidavits describing these things in detail. We have
tried to reconcile the strange silence in the official reports with
this endless recital in the affidavits. The simplest and most like-
ly explanation is that the events described in them also have as
their factual basis some paper that was lying on General Dehner’s,
or General Kuntze’s, or General Geitner’s desk that the affiant did
not read.

This interpretation is bolstered by the disparity between fact
and testimony which occurred in the case of the Instructions of
the Communist Party of Serbia for Band Warfare. List, Kuntze,
the Foertsch testified at length that they had read captured
copies of these instructions and that the gist of them was to en-
courage and incite the partisans to mutilate German prisoners and
kill German wounded. Then the defense, peculiarly enough, pro-
duced these very instructions from the mass of documents which
were sent from Washington. There was not a single word in
their entire 10-odd pages which by any stretch of the imagina-
tion would have been construed to mean what the defendants
testified they themselves had read in them.*

So much for the common defenses and explanations, which like
a loud yet dissonant chorus, the defendants all chanted together.
We turn now to a necessarily incomplete and undetailed review
of the main evidence for and against the individual defendants.

* * * * * * *

Mr. Fenstermacher: These then are the wicked men and this
the depraved record of their crime in five countries for 4 years.

Since the various aspects of the legal issues involved in these
proceedings have already been stated in the prosecution’s two
memoranda, there is no need here to tread that ground again.
The defendants would have this Tribunal deny the right of a
people to fight back against a temporary conquerer, no matter
how flagrant his aggressor or how cruel the regime of his occu-
pation. Such a result would surely encourage some future tyrant
to make his bid for world domination. Moreover, it is not for
the defendants now to complain of violations of international
law which were allegedly committed against them. It was their
own violations of international law — the mass executions, ex-
ploitation, destruction, to say nothing of the initial violation of

* See enclosure, “Partisan Warfare” (Doc. List 202, List Def. Ex. 46), p. 951.

1167

Greek and Yugoslavian sovereignty — which gave rise to the resis-
tance which these defendants now contend was beyond the pale.

The rights and privileges of an occupier under international
law do not accrue simply because a land is declared conquered
and occupied. The occupation must be effectively maintained.
It is precisely on that issue that the legal arguments of the de-
fense on the unlawfulness of partisan resistance breaks down.
One need not go into all of the details here. But the fact does re-
main that the initial conquest of Greece and Yugoslavia was not
maintained. If what the defendants say is true that they could
have, at any given moment and for any given place, subdued
the partisan opposition, one naturally asks why that was not
done. The very fact that each of the defendants has testified
to having loudly and continuously pleaded for troop reinforce-
ments is in itself a complete admission of the military failure of
the German occupation.

After the plenitude of documentary evidence submitted here,
it would be supererogation to set forth again all the reasons why
the Greek and Yugoslav guerrilla forces were entitled to recogni-
tion as lawful enemy belligerents. That they were recognized
by the Allied forces as such, and indeed that these defendants
themselves urged similar recognition upon their own government
is much too clear to necessitate further argument.

The prosecution has also argued that the execution of hos-
tages is unlawful per se . That fact is recognized not only by the
specific statute under which this proceeding is brought, but by
preexisting, international law as well.

The defense has attempted to dispute our contention that
Control Council Law No. 10 is a correct statement of existing
international law on the hostage question by introducing evidence
of alleged executions of hostages by the Allies during the last
war; but none of the evidence which has been brought forward
proves what it was advanced to prove.

The rebuttal witness David Bernstein made the defense testi-
mony regarding an alleged American announcement threatening
the execution of the hostages at a 200:1 ratio complete perjury,
and the affidavit of Franz Karl Maier did likewise with respect
to the supposed 5:1 hostage order said to have been publicly
posted in Stuttgart by the French occupation authorities.

The evidence indicating that four hostages were executed by
French troops in the village of Reutlingen in retaliation for the
death of a French soldier is ambiguous and indefinite at best.
The placard which was posted following that supposed execution
of hostages stated that “those responsible” for the shooting had
been apprehended and shot. It is certainly not clear beyond doubt

1168

that any hostages were ever executed by the French at all. More-
over, if hostages were really shot on that occasion, it was in
flagrant violation of section 21 of the French Army regulations
which provides only for the taking and not for the execution
of hostages.

The attempt to prove that the Control Council Law is an in-
accurate statement of international law by demonstrating that
the American Army considers the execution of hostages not to
be unlawful met with a similar lack of success. The entire file
of the American 6th Army Group on the question of the Ameri-
can attitude towards the order of the French general, LeClerc,
in Strasbourg which provided for the execution of 5 hostages
for each French soldier killed by snipers in that city is a complete
refutation of the defense attempt. The LeClerc proclamation was
in effect not more than 24 hours at most. As soon as American
authorities heard of it, it was rescinded for the very reason that
it was in violation of international law.

A supposed execution of hostages in the city of Markdorf was
also alluded to. But in that case too, the evidence of the de-
fense is on its face irrelevant. One affiant stated that no hos-
tages were executed at Markdorf but rather that German soldiers
dressed in civilian clothes had been captured and dealt with
obviously as spies.

It is apparent, therefore, that not one single hostage execution
was proved to have been carried out by the enemies of Germany
during the entire war. But even assuming for the sake of argu-
ment that there had been violations of international law on the
part of Germany's opponents, that still would not destroy the
validity of the law under which we are proceeding. It is a
common place to say that two wrongs do not make a right. To
assume that the organized planned and governmentally-authorized
executions of hostages which the Germans committed, even if
individual, sporadic, unorganized, and unauthorized hostages kill-
ings were carried out by the Allies, could rescind or make ineffec-
tive international law upon the subject is, of course, illogical in
the extreme. If international law ceases to be such because of
sporadic violations, there will never be any such law, no legal
system could survive such a theory. Under the defense theory of
how international law is made the criminal himself could prevent
the enactment of the very law which would make his act unlaw-
ful. The criminal then, by his negative action, could in fact
annul any attempt by the rest of society to make him responsible
for his deed.

But even if the execution of a single hostage were not a crime
in itself, the evidence of the numbers of hostages killed and the

1169

ratios employed which has occupied the attention of this Tribunal
for these 7 months would sustain convictions against each one
of these defendants. The defense here has sought to avoid the
application of hostage law to this evidence by advancing the
theory that these executions are justifiable under the doctrine of
reprisal. But not a single one of the criteria which govern the
taking of reprisals was met in the case of these defendants. By
their own testimony, the question of the lawfulness of their
measures was completely irrelevant. E\ ery minor German officer
was permitted to order reprisals that were not only completely
disproportionate, but based solely on revenge as well.

Our interruption of the law with respect to superior orders and
military necessity has also been set forth in great detail else-
where. The number of cases in which the defense of superior
orders has been held not to confer immunity from criminal
responsibility are legion. And General Winter, a defense witness,
gave the lie to the plea of military necessity when he told the
conference of chiefs of staff on 9 December 1943 that if reprisal
measures were to be made effective, then the “really” guilty
had to be sought out, and that the execution of hostages and the
levelling of entire innocent villages would merely bring about an
increase in the bands. It is precisely because of the military stu-
pidity of the heavy-handed policy that the Germans were even-
tually forced to withdraw from the Balkans.

There then are the facts, the law and the men with which we
have been concerned over this extended period. How they shall
be punished for their ruthless offenses against humanity is to be
decided by this Tribunal in its wisdom. It may be true that the
defendants did not each commit crime in the same degree or to
the same extent. Murder is murder whether it be committed
singly, by tens, or by tens of thousands. It is no defense to
Leyser that he did not kill on the same scale as List and Kuntze.
Each executed commissar is still an open violation of the most
fundamental precept in the soldier’s code — an enemy who has
laid down his arms in surrender may not be killed because he
wears a particular emblem on his sleeve.

If the Tribunal believes that comparisons between this case and
others are instructive, there are many examples and precedents
which merit examination. A number of the colleagues and
subordinates of these defendants have had to answer for similar
crimes or similar charges — Loehr, Kuebler, and Neidholdt in
Yugoslavia, and Braeuer, Mueller, and Andrae in Greece. Others
have been called to very severe account on charges very much
narrower than those which have been brought, and we submit,

1170

amply proved in this case. Field Marshal Kesselring 1 and Gen-
erals Mackensen and Maelzer 2 were sentenced to death, and then
reprieved to a life sentence, because of a single large hostage
execution at a ratio of 10:1 in Rome in 1944, and because of
certain general orders with respect to the treatment of Italian
partisans which were in effect for only a short time and were
not nearly as wantonly brutal as the orders issued and enforced
by these defendants. Other generals have been convicted of
capital offenses because of their responsibility for the killing of
Allied airmen who had been forced down in Germany, and General
Anton Dostler has been tried and shot for the execution of
American Rangers in compliance with the criminal mandate of
the Commando Order. 3

The task of making the punishment fit the crime is the task
of this Tribunal not of the prosecution; but the prosecution
cannot say that it believes the action taken in these other cases
to have been unreasonable or unduly severe, and we suggest that
willful participation in a systematic and preconceived program of
crime, such as has been proved in this case, is, from the stand-
point of world society, a far more serious offense than respon-
sibility for isolated or spasmodic criminal outbursts. Charity
and forgiveness are among the divine attributes of man, but
they, like all other capacities, must be exercised with intelli-
gence and discrimination or they lose their meaning. We must
not allow false mercy here to insult the hundreds of thousands
who lie buried in Greece, Yugoslavia, and Norway because of
what these men did; justice must be wise and firm as well as
merciful.

One might perhaps have been more moved to feel pity for
their fate had any one of them shown the slightest sign of re-
morse or given the faintest indication of repentance for what
they have done. But in explanation and excuse they have only
pointed out the personal, national, and international tragedies
which intruded upon their lives. They, all of whom served in
the First World War, say that they returned to a millieu of
hopelessness and collapse, that they were subject to political,
economic, and social forces of crushing impact and titantic mag-
nitude, and that they are the hapless victims and the whipped
and unresponsible products of a confused people in a disturbed
and bewildered world. It is this philosophy of emotional fatal-
ism which has made their proffered excuses of individual and col-
lective guilt so cowardly and contemptible.

1 See Law Reports of Trials of War Criminals, op. cit. supra, vol. VIII, Case No. 44, Trial
of Albert Kesselring.

2 Ibid., Case No. 43, Trial of General von Mackensen and General Maelzer.

3 Ibid., vol. I, p. 22, Case No. 2, The Dostler Case.

1171

Their fault, like Brutus’, lay in themselves and not in their
stars. It was their individual response to their own individual
situations which marked their failure. It is not because they
were soldiers, nor because they have lost, but because they were
not men that we ask now that they be permitted to reap the
full harvest of that which they so conscientiously sowed.

These men have disgraced themselves, so shamed their own
profession and their country that it will be decades before the
world will be able to think again in terms of the Germany of
Schiller, and Heine, and Mendelssohn, and Brahms. It is not
their individual fates for which we now feel concern. Their
power for evil has already been broken. None of them will ever
lead the legions of the German armed forces again. But if what
they have done is not branded as criminal, if the myths they
seek so desperately to perpetuate are not clearly labeled as such,
if the facade of starched respectability behind which they seek
to hide is not disclosed, then another generation of Germans may
rise to revere them, accept their ethics, and say they did no
wrong.

The real complainant at this bar is civilization. Let its plea
be granted; let those who would destroy it be punished; let
the laws be upheld.

Presiding Judge Wennerstrum : I take it that you have con-
cluded your presentation of the argument on behalf of the
prosecution ?

Mr. Fenstermacher : That is right, Your Honor.

Presiding Judge Wennerstrum: The Tribunal will be in re-
cess until 9 :30 tomorrow morning.

B. Extracts from Closing Statement for Defendant List*

Dr. Laternser (counsel for the defendant List) : Your Honors,
may it please the Tribunal. In the long series of trials which
have been held against leading members of the German Officers’
Corps, the trial against Field Marshal List is a new, and in many
respects, an especially remarkable one. Once again in a mass
trial a number of German generals are called into the lists to
face an enemy Tribunal, and sometimes it seems as if the chain
of these trials will not be broken until the lists of the highest
commanders in American custody are exhausted and they are
all condemned.

* Complete closing statement is recorded in mimeographed transcript, 4 February 1948, pp.
9719-9874.

1172

The only question now is how future generations will judge
this new attempt at a penal apprehension of the events of a gi-
gantic world-wide war.

There is no doubt that the methods of warfare during the
course of the years have intensified increasingly. This applies,
however, to both sides. But the cases in which deviations were
made from the ground of international law were completely
different. As far as violations of definite fixed rules of interna-
tional law were concerned, I am the last man to dispute the
right to take proceedings against the perpetrators. As far as
matters which lack adequately clear rules about which there
can be no misconception are concerned, the legal position must
be judged in a fundamentally different manner.

The charges against Field Marshal List belong exclusively to
the second group. They refer to spheres in which the provisions
of international law are either still entirely undeveloped or are
elastic or contradictory. By grouping their trial with the large
chain of Nuernberg Trials, it falls to the lot of men, who up till
now have rejoiced in a blameless name and reputation, to be
placed together with the leading exponents of the NSDAP and
the SS.

This attempt by the prosecution to implicate officers with those
who bear political responsibility contradicts historical facts.

The German soldier and officer has always enjoyed the highest
respect among soldiers throughout the world because of their
military ability and their generally acknowledged chivalry in
waging war. These qualities have also been recognized by the
enemy in this war, and in this connection, I should like to refer
to Field Marshal Alexander, who confirmed the fair and praise-
worthy waging of war in the Italian theater.

May it please the Tribunal. The defendants did not don their
uniforms for the first time during the National Socialist period.
In fulfilling their duty throughout decades, it was their one desire
to uphold the ideals of German soldierdom, its principles of
decency and purely objective tasks, and to perform them in the
face of all the new developments of the Hitler regime which
were occurring around them and expanding more and more.

These centuries of old German army tradition which — as Field
Marshal List often expressed to his confidential colleague General
Olbricht, who was executed for participation in the attempt on
Hitler's life — “were an unbridgeable gap" between officers and
the exponents of the Hitler regime. Is he supposed to have
thrown all this overboard shortly before the end of his long
period of service, and to have become a war criminal?

1173

Is it possible for men of such origin, with such careers and
such development as Field Marshal List and the other defendants,
suddenly to become criminals?

Is it credible that these men subordinated themselves to an
alleged plan to decimate or to exterminate the population of occu-
pied countries?

Here, too, history in its own way will seek and will find the
truth, and in so doing will take into account the unique, difficult
situation in which these men were placed.

It will also discover that the Nuernberg prosecution in its one-
sided method of observation has not properly tracked down causes
and backgrounds, has overlooked vast implications, and in many
cases has looked at things upside down.

How would it be possible otherwise for these men to be im-
plicated in plans w r hich are completely alien to their disposition,
and for it to be completely disregarded that all these officers were
far removed from the ideology and logic of the Hitler regime?

During this trial, the defense considered it its task to show how
things were in reality — how Field Marshal List was never a
Nazi general, how he was always opposed to the exponents of
the Party and its organizations, and how more than once there
were serious conflicts between him and Hitler. The unbridgeable
opposition between the two finally led to the premature discharge
of Field Marshal List in 1942. His whole past experience removed
him clearly from Hitler, his people, and the National Socialist
ideology. These facts did not prevent the prosecution from
attributing to Field Marshal List motives and plans which were
always alien and unknown to his whole being.

I address an urgent appeal to the Tribunal not to follow the
prosecution along this road, but to keep the following facts in
view: When Field Marshal List left the army, he had 44 years
of an honorable career behind him; and he enjoyed the highest
esteem not only at home, but abroad as well. Persons of the
most varied nationalities were among his pupils, and missions
from many countries participated in military maneuvers under
his command. None of the literature as yet published concern-
ing the events of the Second World War contains one single un-
favorable word about him.*

A man who can produce all these facts to speak on his behalf
does not suddenly become overnight a murderer and a pyromaniac
who rejoices in torturing and oppressing occupied countries and
innocent civilian populations drawn into the miseries of war!
I think it not only a cardinal rule in the procedural law of civilized

* Compare notes in von Hassel, From the Other Germany. Ambassador von Hassel was sen-
tenced to death for participation in the attempted murder of Hitler on 20 July 1944.

1174

countries but also a natural commandment of judicial fairness
to attribute unfair motives to a man with such a past only on
the basis of quite definite evidence. 1 must stress this fact here
at the very beginning because essential parts of the indictment
will then appear from the start in a different light.

Your Honors, in this connection I have reason to refer to the
instructive course of events which followed the verdict in the
case of Field Marshal Kesselring. It was the prosecutor him-
self who, at the beginning of this present trial, mentioned the
strong differences of opinion which arose in England concerning
this verdict. The violent opposition which it called forth there
must constitute food for thought for every jurist. This verdict
met with such disbelief and so much indignant rejection in Eng-
land because people saw in it a striking contradiction. The con-
demned man was known to the world as an able soldier and an
honorable man, and his former enemies on the Italian front did
not hesitate to testify for him in public to this effect during the
trial and after the pronouncement of the verdict. All this refers
to the same man who was supposed to have been guilty of the
basest war crimes.

It is encouraging evidence of the alertness, the sensitivity, and
the profound awareness of law in the British people that they
reacted immediately to this contradiction and took their authori-
ties to task for this striking sentence.

In its detailed comment on the sentence against Field Marshal
Kesselring, from which one can see the profound uneasiness of
British public opinion concerning this sentence by the British
Military Tribunal, the Manchester Guardian wrote on 22 May
1947 that considerable doubt must arise as to whether and to
what extent German generals can be made responsible for the
events of the war.

'There is an uncomfortable feeling that we have sentenced
these men to death because they are figureheads, the command-
ers of a defeated army whose execution would satisfy the public
clamour for revenge. But that is not justice as we understand
it.”

My request to you, Your Honors, is that, when making your
concluding evaluation of the case in question, Your Honors pro-
ceed from the desire and the firm purpose not to be influenced in
the least by the prejudices and insinuations of the prosecution,
and always bear in mind the sort of personality Your Honors are
dealing with in Field Marshal List.

********

1175

There have always been aggressive wars, and a nation's right
to defend itself has never been disputed. It is just as certain
that this right has always been bound to certain recognizable
forms. Just as it is in the nature of man to defend himself, so
it is a primordial rule of war that the civilian population must
not take part in the struggle. If they do they should know that
they must expect the most stringent countermeasures, and they
ought to know that. This is a very harsh but a very natural
law. It springs as much from human nature as from the essence
of war as we have been able to trace it as a sociological phenome-
non in human history. This law has always been valid and the
belligerent population and those who influence its behavior would
do well always to bear it in mind.

The rule that the population is not allowed to take part in the
fighting dates back to Cicero. Professor Wheaton writes in this
connection : 1 2

“Cicero tells us in his 'offices/ that by the Roman fecial law
no person could lawfully engage in battle with the public enemy
without being regularly enrolled and taking the military oath.
This was a regulation sanctioned both by policy and religion.
The horrors of war would be indeed greatly aggravated if every
individual of the belligerent states were allowed to plunder
and slay indiscriminately the enemy's subjects without being
in any manner accountable for his conduct."

Professor Spaight has analyzed this problem in some detail in
his fundamental War Rights on Land. He writes inter alia:*

“Though the sparing of a peaceful population is a fairly
modern growth in war usage, the refusal of combatant rights
to nonmilitary people is almost as old as history ; it is mentioned
in ( De Officiis’.”

Professor Spaight then goes on to quote Kipling who puts the
following words in the mouth of an Indian Sikh, the embodiment
and spokesman of a tribe of fighters : 3

“It is manifest that he who fights should be hung if he fights
with a gun in one hand and a pnrwana [a permit given to non-
combatants for their protection] in the other."

Professor Spaight comments on this:

“There is a whole chapter of war law — its history and its
principle — epitomized in these words."

1 H. Wheaton, Elements of International Law (Carnegie Endowment for International Peace,
Washington, 1936), p. 379.

2 J. M. Spaight, War Rights on Land (MacMillan, London, 1911), p. 37.

3 Ibid., p. 38.

1176

Modern history provides numerous instances to show that the
violation of this principle has entailed dire consequences for the
population in an invaded or occupied territory, there being, as
Professor Spaight remarks, “* * * ample evidence of the uni-
versality of an invader's war right to punish popular resistance
with a heavy hand". 1

I shall mention a few instances in which there is obviously
no question of “Prussian Militarism," a term which in this
connection is frequently quoted with some relish.

In 1792, the French occupation army in Switzerland suppressed
an uprising in the Canton of Nyderwalden [Nidwalden] by a
punitive expedition of cruel harshness, no prisoner being taken.
After the rising had been quelled, the French General Schauen-
burg issued the threat to the other cantons in the heart of Swit-
zerland that “upon another uprising, everybody offering resist-
ance will be killed and homes and farmsteads burnt down." 2

Eleven years later, appeals to rise against the French occupa-
tion army were issued in Tyrol. The plea for this rising was
described as “self defense" and the “right of self defense" in the
official proclamations. The insurgents were denied recognition as
belligerents. In 15 May 1809, Napoleon ordered:

“* * * that all Tyroleans possessing arms be shot and hanged
upon capture, and that, whenever within an area, village, dis-
trict, or territory under the jurisdiction of a court, a dead
soldier is found, the entire valley or area or territory under the
jurisdiction of the court be burnt down within 24 hours, the
most prominent inhabitants thereof be hanged on the next tree
even if they be found without arms." 3

In 1814, the Duke of Wellington threatened the French frontier
villages that he would burn down the villages and have the in-
habitants hanged if they supported the partisans. 4

A most informative instance of the natural reaction of an in-
vasion army to hostile acts on the part of the population is pro-
vided by the American Civil War. On 24 December 1864, General
Sherman wrote in a letter to General Hallek :

“This war differs from European wars in this particular;
we are not only fighting hostile armies, but a hostile people,

1 Spaight, op. cit. supra, p. 40.

2 Correspondence of Peter Och, 1796-99, No. 331, vol. 2.

3 Proclamation of the Duke of Danzig, 15 May 1809, quoted from Meurer, The Hague Peace
Conference, vol. II, p. 66.

4 I. C. Bluntschli, “Das Moderne Voelkerrecht der zivilisierten Staaten,” 2d Ed. (Noerdlingen,
1872), p. 519, quoted in J. W. Garner, International Law and the World War (Longmans,
New York, 1920), vol. II, p. 643.

1177

and must make old and young:, rich and poor, feel the hard
hand of war, as well as their organized armies.” 1

'The people must be left nothing but their eyes to weep with
over the war.” 2

The Swiss historian Bircher writes in his book War without
Mercy about General Sherman: "In his instructions he gives
the following typical order: The roads, the horses, and the people
have to be destroyed.' ”

In his memoirs General Sherman himself writes as follows :

"Before we left Carolina, the soldiers had become so used
to destroying everything which was on the route of the march
that the house in which I had my headquarters frequently
burned before I had left it.”

The following remark was made by General Kilpatrick, the
commander of Sherman's cavalry:

"Only the ruins of what used to be human dwellings shall
prove to future generations that Kilpatrick's horsemen came
this way.” 3

A few years before that (1860) a "well informed” author — so
designated by Spaight — pointed out:

"* * * that attacks by the inhabitants of an invaded country
directed against the hostile troops would recoil with terrible
effect upon their own heads. 'Men, women, and children sacri-
ficed, the innocent as well as the guilty, houses burned, and
property was plundered and devastated — all are considered
legitimate retribution for actions of aggression by an unor-
ganized population.' ” 4

Time has spread its cloak over these events. They have lost their
harshness and have disappeared from human memory. I have
referred to these remarks only because they show in an incisive
and direct fashion the reaction which is called forth all too easily
if the population participates in the battle against an invading
army. They are convincing proof for the correctness of Pro-
fessor Spaight's statement to the effect that —

"* * * those who claim for every citizen the right to take
arms at his pleasure against an invader are really striking at
the roots of all clean and civilized war.” 5

1 Sherman Memoirs, p. 226, quoted by Spaight, op. cit. supra, footnote, p. 35.

- Higgins, War and the Private Citizen (P. S. King and Son, London, 1912), p. 65.

3 George Ward Nichols, Story of the Great March (Harpers and Brothers, New York, 1866).

4 Blackwoods Magazine (1860), vol. 88, p. 612, quoted by Spaight, op. cit. supra, p. 39.

5 Spaight, op. cit. supra, p. 38.

1178

That is the grave responsibility of those who incited the Greek and
Yugoslav populations — after the surrender of their armed forces
and after the occupation of their countries — to fight against the
German occupation army, thereby violating international law,
and it is also the responsibility of all those who promoted and
supported such warfare from abroad, thus preventing the speedy
reestablishment of law and order in the occupied territories.

The delegates to the Brussels [Hague] Conference of 1899 and
of 1907 have keenly dealt with the problem of participation by
the indigenous population in the fight against an invading or
occupying enemy army. Regarding the result there is no serious
disagreement among the authorities on international law, and
the unequivocal attitude of the governments with regard to this
problem can be seen from the military manuals of the United
States and of Great Britain, both of which deny the rights of
belligerents to insurgent populations. 1

It is true that at the Brussels Conference of 1877 [1874] as
well as at both Hague Conferences the deputies of various small
and medium size states stood up for far-reaching recognition of
the right of their population to fight against an invading enemy.
They referred to tradition, history, and to the patriotic feel-
ings of their fellow citizens while forgetting the practical conse-
quences which have always been brought about by the participa-
tion of the civilian population in combat. The well known
Belgian expert on international law, Rolin — the President of the
Institute for International Law and Referent of the Commission
for the Law of Land Warfare at the Hague Convention of 1899 —
immediately after the Brussels Conference expressed the warning
and pointed out that the insurrection of a population was a means
of combat — “which should not be regarded in the heroic light of
certain famous episodes but with an eye to its miserable and
common reality.” 2

None of these conferences of the great powers, as has been
asserted, had the intention to deny a population its natural right
to defend its fatherland. The attitude taken by their deputies was
rather in agreement with the laws of war which have applied
as legal usage particularly with regard to the problem of partici-
pation by a population in the fight and its insurrection in occupied
territory, and this attitude took account of the interests of the
populations in a far more realistic manner than the somewhat
pathetic views of some of the deputies of smaller nations.

One has to bear in mind that Article 85 of the “Instructions for
the Government of Armies of the United States in the Field” of

1 Rules of Land Warfare, U. S. Army Field Manual 27-10 op. cit. supra , pars. 12 and 349;
British Manual of Military Law, Rules of Land Warfare, ch. XIV, art. 29.

2 Revue de Droit International (1875), p. 109 ff.

893964—51 77

1179

1863, written by Professor Lieber just eleven years previously at
the request of President Lincoln and almost literally reproduced in
paragraph 349 of the American Rules of Land Warfare of 1940,
above being the first codification of martial law which, with
regard to insurrections in occupied territories formulated the then
valid law very accurately, reads as follows:

“War rebels are persons within territory under hostile mili-
tary occupation who rise in arms against the occupying forces
or against the authorities established by the same. If captured
they may be punished with death, whether they rise singly or in
small or large bands, whether or not they have been called
upon to do so by their own expelled government, and, in event
of conspiracy to rebel, whether or not such conspiracy shall
have matured by an overt act of hostility. ,,

The Russian suggestions for the Brussels Conference were
based to a large extent on those instructions from 1863. The fact
that Article 74 of the Russian draft was withdrawn owing to the
objections raised by Belgium, Holland, and Switzerland was a
compromise only as far as the form went but not in essence.

The manual of the Institute for International Law, issued in
1880, which was mentioned by the prosecution in its Memorandum
of Law 1 , was not a codification but — strictly speaking — merely
the work of the experts represented at the Institute. Having
been accepted in a meeting of the Institute in Oxford, on 9 Sep-
tember 1880, the manual was made available to the governments
of Europe and of the United States with the suggestion that cor-
responding provisions be incorporated in the instructions to be
given to the armies. The above-mentioned provisions of the mili-
tary manuals of the United States and Great Britain prove that
the suggestion contained in the manual that insurgents in occu-
pied areas be afforded the rights of prisoners of war was not
approved by the governments.

During the Hague Conference in 1899, the small states, this
time supported by England, renewed their struggle for the recog-
nition of an unrestricted right of the population for self-defense.
The Belgian representative, Beernaert, requested that Articles 9
and 10 of the draft 2 (Articles 1 and 2 of the Hague Conventions
of 1899 and 1907), which limit the conditions for a legal resistance
of the population and of irregular units, be eliminated.

The Russian president, Martens, 3 opened the discussion in
the meeting of 20 June 1899, during which the differences of

1 Prosecution’s Memorandum of Law, English text, p. 11.

2 La Conference Internationale de la Paix, La Haye, 18 May-29 July 1899; Minist4re des
Affaires firangeres, La Haye, 1899, French text, vol. Ill, p. 112.

3 Fedor Fedorovich Martens, Russian Jurist, 1845-1909.

1180

opinion clashed, and he outlined the point of view of the large
powers. 1 He declared that the “holy right of the nations” for
defense was to be impaired by no means. Articles 9 and 10 were
only to provide that a duty, which was equally incumbent on all
nations, was to be duly fulfilled, namely to ascertain the essential
conditions under which a nation was to be permitted to partici-
pate in a war, and thus to avoid unnecessary bloodshed. He closed
his statement with the words —

“It is not our task to limit patriotism; it is solely our task
to establish by common agreement between the nations the
rights of the population as well as the conditions to be fulfilled
by those who want to fight legally for their fatherlands.”

The Swiss representative, Colonel Kuenzli, recognized the fact,
which Martens had already stressed, that according to the
existing customs of war any insurrection had up to date been
countered with equal ruthless severity. Colonel Kuenzli there-
fore moved that reprisals against open armed resistance of the
population in occupied territory be forbidden. 2 He withdrew
that motion after the British representative, General Ardach,
moved that a special article was to establish that the right of
defense of the population in a territory which had been invaded
by the enemy was to be neither reduced nor destroyed by article
10. 3 This motion was also withdrawn after the German repre-
sentative, Colonel von Schwarzhoff, objected to it, and even after
the Belgian representative, Beernaert, and the representatives of
Denmark, Sweden, Norway, Holland, Rumania, and Italy opposed
an attitude such as was demanded by General Ardach to be
expressed by the article to be included in the Regulations, and
after only Switzerland was prepared to vote for the British
motion.

Thus Articles 9 and 10 of the Brussels draft became interna-
tional law as Articles 1 and 2 of the Hague Rules for Land War-
fare of 1899 and 1907. In 1907, however, the recognized right of
the population of occupied territory to rise against an approaching
enemy was qualified by the conditions that arms would have to be
carried openly.

The results of the Hague Conferences with respect to the ques-
tion of an insurrection of a population in occupied territory have
been formulated very clearly and unequivocally by Professors
Oppenheim and Lauterpacht. In the well known commentary
“International Law” the following is stated after a discussion
on Article 2 of the Hague provisions:

1 Ibid., p. 151 ff.

2 Ibid., p. 154.

3 See Prosecution’s Memorandum of Law, English text, p. 12.

1181

“Totally different, however, is a levy en masse of the popu-
lation of a territory already invaded by the enemy, for the
purpose of freeing the country from the invader. Article 2 of
the Hague Regulations does not cover this case, in which, there-
fore, the old customary rule of international law is valid, that
those taking part in such a levy en masse are liable to be shot
if captured/’

We assume that the provisions of the military manuals of the
United States and Great Britain concerning insurrections in
occupied territories contain the official opinions of these two
states about the status of international law with respect to this
particular question. They read as follows :

Paragraph 12 of the American “Rules of Land Warfare” —

“Uprisings in occupied territory. — If the people of a country,
or any portion thereof, already occupied by an army, rise
against it, they are violators of the laws of war, and are not
entitled to their protection.”

Paragraph 349 —

“War Rebels — War rebels are persons within territory under
hostile military occupation who rise in arms against the occupy-
ing forces or against the authorities established by the same. If
captured they may be punished with death, whether they rise
singly or in small or large bands, whether or not they have
been called upon to do so by their own expelled government,
and, in event of conspiracy to rebel, whether or not such con-
spiracy shall have matured by overt act of hostility.”

Paragraph 29 of the British Rules of Land Warfare reads as
follows :

“* * * They are exempt from the obligations of being under
the command of a responsible commander and wearing a dis-
tinctive sign. It must, however, be emphasized that the in-
habitants of a territory already invaded by the enemy who rise
in arms do not enjoy the privileges of belligerent forces.”

Concerning this question the most prominent authorities on
international law and the competent military agencies, including
those of the United States and Great Britain, are in agreement —
certainly not because they want to restrict the rights of the
nations to defend themselves or because they are followers of a
narrow doctrine. Instead, their opinion is based on the realistic
recognition of the basic fact that war exists, which Spaight
formulated as follows:*

* Spaight, op. cit. supra, p. 37.

1182

“The separation of armies and peaceful inhabitants into two
distinct classes is perhaps the greatest triumph of international
law. Its effect in mitigating the evils of war has been in-
calculable.”

The events in Yugoslavia and Greece were a very impressive
proof of the decisive importance of the principle which had been
basically recognized for some considerable time. This principle
was violated during the war in the Balkans by Germany's enemies
to an extent never equaled in history. In Yugoslavia as well as in
Greece, the civilian population was incited to rise against German
occupation forces by powers constantly instigated and supported
from abroad. One glance of history ought to have sufficed in order
to realize the consequences which this, according to a fundamental
law of war, was bound to entail for the population.

It is not without significance to note that this realization,
even before the last war, was also shared by the nations who, as
recently as at the Hague and Brussels conferences, had ardently
advocated a very far reaching recognition of the right of their
population to rise against an invader. I have already mentioned
that at the Hague Conference of 1899, Switzerland was in the
end the only country prepared to vote for the far reaching motion
of the British representative. The Swiss view has meanwhile
undergone a radical change. Please listen to the opinion of an
eminent soldier of that country which owes the preservation of its
independence and its great prestige in the world as much to the
courage of its inhabitants, so often proved in history, as to their
shrewdness.

In 1927 the Swiss chief of the general staff, Oberstdivisionaer
Sprecher von Bernegg, stated in a lecture on the question of a
people's war:

“The claim that such a rising by any rules can no longer be
sustained today after the 1907 Agreement has provided the
means of procuring belligerent rights to all participants in the
fight, if they want to take the trouble of availing themselves of
this means. Besides, the consequences entailed by an unlimited
popular participation in the fighting must be realized. By
that, the opponent will be forced to see an enemy in every
inhabitant and to attack every locality, even if it be at first
undefended, and in any case to destroy it because its inhabitants
claimed the right after invasion by the enemy to use their
hidden arms on guards, trains, and noncombatants. That
would no longer constitute war, but wholesale murder.”

If one wants to make war humane one must not make such
wild demands. The conclusion from this realistic consideration,

1183

in which other high-ranking Swiss officers concurred too, was
drawn in the Swiss Service Regulations of 133, Article 5 of which
states :

“Troop commanders and authorities will explain to the popu -
lation that everyone who wants to participate in the fighting
must do so as a member of the army. They will refer the
volunteers to those authorities who are authorized to enlist
them.”

The assertion that Yugoslav and Greek resistance was merely
the consequence of violations by the Germans of the obligations to
which an occupation power must adhere and that all acts of
resistance of the Yugoslav and Greek populations had occurred
only after the German occupation power had violated its obliga-
tions according to Articles 43 and 46 of the Hague Regulations,
is incorrect. Quite apart from the fact that the attempt thus
to make the offenses against international law committed by the
population appear lawful is more than dubious from the point of
view of international law ; the facts submitted during these pro-
ceedings make it quite clear that the contrary was true. Every-
thing we have heard in these proceedings shows plainly that all
measures of the German occupation forces were defensive and
constituted countermeasures by which, as the prosecution itself
has stated, the German occupation forces attempted to reestablish
peace, law, and order in Yugoslavia and Greece.

The population of Yugoslavia and Greece did not resist because
it wanted to defend itself against the conduct of the German occu-
pation armies, which was allegedly contrary to international law,
anymore than was the case in other theaters of war where German
troops fought the partisans. It has rather been established that
the partisan movement was called into existence by the Allies
because it was considered to be one of the most essential factors
in order to vanquish Germany.

Even the German orders, directives, and reports which have
been submitted to the Tribunal by the prosecution as well as by
the defense in great numbers suffice to show that such was the
case. They give an unequivocal picture of the situation which the
commanders of the German armed forces in Yugoslavia and
Greece were facing, and it can be seen from them why the above-
mentioned commanders were compelled to take defensive meas-
ures. These orders and reports prove clearly that the German
countermeasures were caused by the illegal conduct of the popula-
tion and by the partisan activities and that the contrary was not
the case as has been asserted here.

1184

Where is there an order to the effect that Yugoslav or Greek
citizens were to be executed without mention having been made
that previous to it German soldiers had been murdered and acts
of sabotage perpetrated by the population? Where is there a
report which does not prove that the German countermeasures
were merely the consequence of such surprise attacks against
the occupation forces? Where is there an order which directs the
arrest of Y ugoslavs and Greeks and which does not, at the same
time, show that the arrest is to take place for reasons of security,
sabotage acts, and murders of German soldiers having occurred
because of partisan activity? Where is there a message or report
which does not confirm that the arrests concern hostages, the
taking of which is permissible under international law, or the
interning of suspicious elements and such parts of the popula-
tion which represented a potential danger to the German armed
forces, or at least could have done so, and furthermore in areas
threatened by insurrections, where surprise attacks against the
German armed forces had occurred or partisan activity had been
uncovered ?

We only have to look at the most important orders, and we will
find this unequivocably confirmed.

The first order issued by General Boehme as German Pleni-
potentiary General in Serbia states that the beginning of the
German campaign in Russia was for Serbia a signal for a new
insurrection, to which hundreds of German soldiers had already
fallen victim.

Paragraph 1 of the order of Field Marshal List, 5 September
1941, concerning the “Suppression of the Serbian Insurrection
Movement” (NOKW-084, Pros. Ex. U2) * reads :

“The situation in Serbia does not seem to eliminate the pos-
sibility of a spread of the insurrection movement. Increased
attacks on soldiers and armed forces installations by strong,
well armed bands apparently organized and adroitly led, prove
that previous countermeasures are not adequate.

“Commander Serbia and LXV [Higher] Corps Command
consequently are to make all preparations immediately to enable
them to cope with any aggravation of the situation and to
pacify the country completely before the beginning of the
winter.”

The OKW order dated 16 September 1941 concerning “Com-
munist Insurgent Movement in the Occupied Territories”

* Document reproduced in section VB.

1185

(NOKW-258, Pros . Ex. 53) summarizes the results of reports re-
ceived by the OKW in the following statement : 1

“Since the beginning of the campaign against Soviet Russia
* * * Communist insurgent movements have broken out. The
forms they take have increased from propaganda measures
and attacks against individual members of the Wehrmacht to
open revolt and widespread partisan warfare.

“It is established that it is a question of a centrally directed
mass movement which also must be held responsible for minor
isolated incidents in territories quiet up to now.

“In view of the manifold political and economic tension in
the occupied territories one must also assume that nationalistic
and other circles will exploit this opportunity to cause diffi-
culties for the German occupation power by joining the Com-
munist revolt.”

The teletype of Field Marshal List, dated 4 October 1941,
issues regulations concerning the “Treatment of the Male Popu-
lation in the Insurgent Areas Cleared of Partisans”. (NOKW-
203 , Pros. Ex. 70.) 2

The order by General Boehme, dated 9 October 1941, concerns
the “Cooperation of the Military Courts in the Suppression of
the Uprising in Serbia”. ( NOKW-271 , Pros . Ex. 76.)

His order, dated 10 October 1941, also deals with the “Sup-
pression of Communist Insurgent Movement”. ( NOKW-557 ,

Pros. Ex. 83.) 3

I have selected only orders dated during the initial periods of
the occupation. All orders issued later show the same picture.

In the reports from the troops about countermeasures which had
been carried out, we read again and again that the measures were
carried out “in reprisal” as “retaliation measure,” “in retaliation
of,” “for the murder of,” “in retaliation for the murder of,”
“for the attack of,” etc.

Numerous other documents which have been submitted during
this trial and testimony of witnesses have only confirmed what
messages and reports have shown, which were written under the
immediate impression of the events of the time. In view of all
this, where is the proof for the assertion that the Germans had
been the first ones to violate their duties as occupation power, and
that all acts of resistance of the population had merely been the
reaction ?

1 Ibid.

2 Ibid.

3 Ibid.

1186

I have already described the situation which prevailed at the
time when Field Marshal List was appointed Armed Forces Com-
mander Southeast on 23 June 1941.

It may be expedient at this point to give once again a clear
picture of the development.

Scattered surprise attacks on members of the German occupa-
tion army, murders of German soldiers, and sabotage acts took
place in Yugoslavia very soon after the termination of hostilities
and the occupation of the country. Indications of the formation
of partisan bands became apparent in several areas before any
kind of countermeasures were taken. Surprise attacks were
carried out by individual members of the Yugoslav population
and apparently also by former members of the Yugoslav armed
forces, who had declared despite the capitulation of 12 April
1941, thus violating the capitulation agreement “that they would
continue their resistance,” as the prosecution stated in its opening
statement.

Neither in Yugoslavia nor in Greece were any reprisal measures
carried out during the initial period of the occupation; neither
were any steps taken which even in the most unfavorable inter-
pretation could be designated as a violation of the duties of the
occupying power toward the population. This fact has to be
regarded as refuting convincingly the unfounded assertion that
the resistance activity of the population had been the consequence
for the violation of responsibilities which are incumbent in an
occupation army towards an occupied population.

The sudden and simultaneous flare-up of sabotage and partisan
activity which started with the beginning of the German campaign
against the Soviet Union shows clearly the causes and motives
for illegal resistance activity, the combating of which was the
concern of German commanders in Yugoslavia and Greece during
the next 3 years. It was apparent even at that time that the
attempts at insurrection were mainly incited by Communist
propaganda. The immediate aim toward which this policy was
directed was a relief for the Russian Army, which was involved in
heavy fighting. We know today, too, that this insurgent activity
against the German occupation armies was only the first step
along the road to an ulterior goal, and the seizure of governmental
power by Marshal Tito in Yugoslavia and the events along the
northern frontier of Greece which have concerned statesmen for
2 years and have been discussed in the Security Council and in
the meetings of the United Nations were merely steps along this
road.

The events in Greece also prove the incorrectness of the asser-
tion which argues that German reprisal measures caused counter-

1187

actions on the part of the insurgents. The reports of the 164th
Infantry Division, concerning events in northern Greece in the
autumn of 1941, show unequivocally that there, also, partisan ac-
tivity had resulted in German countermeasures, and not vice
versa. This is further proved by the result of the German meas-
ures. The Commander Salonika-Aegean, to whom the 164th
Infantry Division was subordinated, reported on 3 November
1941:

“The energetic treatment had its effect; at the end of the

month an apparent easing of the situation is noted.”

It was possible at that time in Greece to nip the insurgent
movement in the bud. During the subsequent period there was
complete quiet and order until the end of 1942 and the beginning
of 1943. Even Russian parachutists found no basis for their
activities there.

Having established that the right for the Yugoslav and Greek
population to resist against the German occupation forces can be
concluded neither from the concept of an unlawful war nor from
alleged violations of international law on the part of the Germans,
we now approach one of the most important questions in inter-
national law at issue in this trial. That is, the question of the
status of Yugoslav and Greek resistance forces, especially the
partisans. It is obvious, for instance, that justification of the
execution of captured partisans and also justification of German
reprisal measures, which were aimed at suppressing partisan
activity, depend on the illegality of the formers’ status.

I do not believe that during the examination of the indicted
German commanders the Court will have gained an impression
other than that of a firm conviction on the part of all defendants
that the partisans in Yugoslavia and Greece had no claim to the
status of legal combatants. If we examine the reasons which
caused these men in their capacity as soldiers to deny the partisans
a status of legal combatants, we shall find that certain facts,
stressed by the defendants again and again, such as capitulation,
occupation, and noncompliance with Article 1 of the Hague Rules
of Land Warfare, actually force us from the point of view of
international law to regard the Yugoslav and Greek partisans as
illegal combatants. That means that captured partisans do not
have to be afforded the rights of prisoners of war, and that in-
stead, they had forfeited their lives and that reprisal measures
could be taken for the purpose of suppressing partisan activity.

For the same reason, of course, the status of individual civilians
and nonorganized bands of snipers is of interest. They also
committed numerous surprise attacks, murders of German sol-

1188

diers, and acts of sabotage against installations and communica-
tion lines of the German occupation forces. However, the problem
is less complicated with respect to these persons than it is with
respect to partisan units, which at a later date showed a certain
amount of organization and some of which might have complied in
this or that respect with the provisions of Article 1 of the
Hague Rules of Land Warfare. The illegality of resistance ac-
tivity carried out by individual persons or nonorganized groups
of civilians is so obvious that I can be very brief in dealing with it.

The prosecution has — in connection with the legality or illegal-
ity of the resistance activities against the German occupation
forces — laid considerable stress on the problem of an actual and
effective occupation. The prosecution contests that the German
occupation of certain parts of Yugoslavia, and for the period of
time after August 1942 of certain parts of Greece also, was an
effective one. From this assumption the prosecution concludes
that not all of the German troops occupying Yugoslavia and
Greece were entitled to the rights of an occupant of these coun-
tries. For the same reason certain duties which in the normal
course of events have to be observed by the population of an
occupied country toward the occupation powers were allegedly
not to be imposed on the population of Yugoslavia and Greece.

It is obvious that the illegality of resistance activity which en-
titled the enemy army to punish the perpetrator and to carry out
reprisal measures can be based on two completely different factual
circumstances —

1. Either on the effective occupation of the area where the
resistance took place, or

2. Independent of the occupation, merely on the fact that those
who offered resistance did not hold the status of legal combatants.

The concept of effective occupation refers to the legality of
military government in enemy territory. This is particularly
stressed, for instance, in the introduction to chapter 10 of the
American “Rules of Land Warfare.” Effective occupation trans-
fers to the occupant the governmental authority or power to
exercise some of the rights of sovereignty with regard to legisla-
tion, administration, and jurisdiction for the duration of the
occupation. It follows that the occupant can demand such obedi-
ence from the inhabitants of occupied territory as may be neces-
sary for the security of his forces, for the maintenance of law
and order, and for the proper administration of the country. As
Professor Fenwick* puts it —

* Fenwick, op. cit. supra , p. 569,

1189

“* * * he may demand of the inhabitants the same obedience

and temporary loyalty to which their lawful sovereign is

entitled.”

From this governmental authority and power of the occupant,
which is based on the laws of war, results his right to punish any
resistance and any insurrection within the occupied territory as
rebellion, irrespective of whether those who are offering resistance
comply with Article 1 of the Hague Rules of Land Warfare ; and
equally irrespective of whether the occupying power — as happens
frequently and as was the case with the Germans in Greece and
Yugoslavia — has declared that through express decrees and penal
directives that the possession of arms and any subordination is
a crime punishable by death. I do not believe that there can be
any doubt that if today in Germany certain persons would decide
to fight the occupation forces openly, and if they would form an
organization for this purpose, if they wore uniforms and carried
their arms openly, if they observed the laws and customs of war,
and were led by persons responsible for their subordinates, that
despite compliance with Article 1 of the Hague Rules of Land
Warfare, merely on the basis of the effective occupation of Ger-
many, they would rightly be regarded as rebels by the occupation
powers.

We see, therefore, that where an effective occupation is in
force, the otherwise rather complicated problem of the legality
or illegality of partisans and their activity becomes considerably
simpler. It is therefore of importance for me that the prosecution
admits that an effective occupation existed with respect to Greece
during the period up to August 1942. It is a direct consequence
of the effectiveness of this occupation that all the acts of resistance
were illegal which were carried out during the quickly suppressed
attempt at insurrection in the autumn of 1941 in northern
Greece, and so were all individual actions committed later. The
fact that the occupation was admitted to be an effective one, re-
lieves me of the task of describing in detail that the Greek
partisans — at least during the period of time which is of interest
for Field Marshal List, i.e., October — could not claim the rights
of legal belligerents, apart from other reasons, also because they
did not comply with the provisions of Article 1 of the Hague Rules
for Land Warfare.

The occupation of Yugoslavia, after the conclusion of the cam-
paign, was also effective, despite the surprise attacks and sabotage
acts which occurred here and there fairly soon, if isolated at
first. In this statement in defense of Field Marshal List I have
only to deal with the time during which he was in the Balkans as

1190

armed forces commander. During this period of time the occu-
pation of Yugoslavia never ceased to be an effective one.

Paragraph 280 of the American “Rules of Land Warfare,”
which deals with the cessation of an effective occupation, is some-
what contradictory in its wording. From the sentence “In case
the occupant evacuates the district or is driven out by the enemy,
or by a levy en masse, and the legitimate government actually
resumes its functions, the occupation ceases”, it follows that the
resumption of the governmental functions by the legitimate state
authority in the occupied territory or in parts thereof is a neces-
sary condition for the cessation of effective occupation in the terri-
tory in question. This fact alone is a sufficiently clear indication
for the cessation of an occupation. A clear marking of the
cessation of an occupation can, however, not be dispensed with
because of its far-reaching consequences with regard to inter-
national law, for the occupation power as well as for the in-
habitants, An occupation power, which temporarily shunted a
national uprising, might, after all, return before the legitimate
government resumed its function in the territory in question, and
the former would then be entitled, of course, to treat the partici-
pants of the national uprising as rebels.

The same has to hold true also in instances of partisan activity.
An occupant might frequently and for a considerable period of
time be facing partisan or guerrilla activities and the resistance
offered can show various degrees of strength and extent from
isolated surprise attacks and attempts which undoubtedly cannot
impair in any way the effectiveness of the occupation, up to opera-
tions of a larger scale, which might force the occupant to evacuate
temporarily certain parts of the occupied area. Can somewhat
vague symptoms, such as the strength and extent of the partisan
activity, or the period of time which elapsed until counteraction
is taken, be regarded as useful indications for the cessation of
an effective occupation, which has such far-reaching consequences?
Where can the line be drawn, in such a case, if not in the fact
that the legitimate government has resumed its functions in the
area where the partisans were operating and under their pro-
tection. This is also the opinion of two authors as prominent as
Hall and Westlake. Professor Hall writes:*

“* * * a territory is occupied as soon as local resistance to
the actual presence of an enemy has ceased, and continues
to be occupied as long as the enemy's army is on the spot ; or so
long as it covers it, unless the operations of the national or an
allied army or local insurrection have reestablished the public
exercise of the legitimate sovereign authority.”

* Hall, William E., International Law (Oxford, Clarendon Press, 1924) 8th Edition, p. 576.

1191

Professor Westlake has accepted this opinion as his own.

In no part of Yugoslavia did the legitimate government resume
its functions at any time during the war.

Since the prosecution contends, however, that the effectiveness
of the occupation of parts of Yugoslavia even for the period
immediately following the conclusion of the campaign is question-
able, I shall make the opinion of the prosecution the basis of my
arguments for the purpose of examining the facts when I now
deal with the status of the Yugoslav resistance forces as seen from
the point of view of international law.

Three groups of people participated in resistance activities in
Yugoslavia.

1. Members of the dissolved Yugoslav Army, who above all
participated in acts of resistance and surprise attacks during
the period of time immediately following the conclusion of the
campaign.

2. Individual persons and unorganized bands of civilians.

3. Partisan groups of various political orientations.

We have been able to gather from statements made by the
prosecution that members of the Yugoslav Army escaped to the
hills after the conclusion of the campaign and that they used
stores of arms and equipment which they had taken with them
to continue to fight against the Germans.

This leads us to the question of the capitulation and its effects.
The campaign in Yugoslavia was concluded through a capitulation
of the whole of the Yugoslav Army and of the Yugoslav Govern-
ment. The capitulation was concluded on the part of the Yugo-
slavs and signed for the army by a lieutenant general and a full
general with proper authority; and for the Yugoslav Government
by the former Foreign Minister Markovic by virtue of authority
given by General Kalafatovic, which in turn was based on
authority given by General Simovic. The substance of the capitu-
lation agreement was that the whole of the Yugoslav armed forces
were to discontinue hostilities and unconditionally surrender their
arms. 1 have produced proof for this fact through the testimony
of the witness, Dr. Feine, who was present during the capitulation
negotiations as an observer for the German Foreign Office. Testi-
mony given by the witness, Dr. Feine, further proved that the
carefully examined authority of the Yugoslav delegates was prop-
erly authenticated. This important fact cannot simply be elim-
inated now through the assertion that the members of the Yugo-
slav delegation were Quislings which, by the way, is not correct.
General Simovic, on whose authority Minister Markovic was
authorized to conclude the capitulation, was at that time the head
of the Yugoslav Government and later on the head of the exiled

1192

Yugoslav Government in London. There can be no doubt what-
soever, therefore, that the capitulation was effectively concluded
on the part of the Yugoslav Army as well as on the part of the
Yugoslav Government.

Capitulations — in the strict sense of the English term — are
agreements between the armed forces of belligerents, stipulating
among other things, the terms of the surrender of troops. Their
purpose is the abandonment of hopeless struggle. They concern,
as mentioned before, the surrender of armed forces and are mili-
tary agreements solely and exclusively, the competence of the con-
clusion of which is vested in the commanders of the forces
opposing each other. Only in as much as they contain any agree-
ments which exceed the capitulation of the armed forces, is it
necessary for the validity of the former that the competent politi-
cal authorities participate in the negotiations.

Article 35 of the Hague Rules for Land Warfare states con-
cerning military capitulations that they must take into account
the rules of military honor and that, once settled, they must be
scrupulously observed by all parties.

We have gathered from statements made by the prosecution
that capitulation which concerned the whole of the Yugoslav
armed forces was supposedly not adhered to by parts of the army ;
if we examine the consequences of such behavior for these mem-
bers of the Yugoslav armed forces who continued to fight against
the Germans, we find that this factor alone justifies their punish-
ment as war criminals and could be countered by reprisal meas-
ures on the part of the Germans.

In the commentary by Oppenheim-Lauterpacht the following is
stated in this connection:

“That capitulations must be scrupulously adhered to is an old
customary rule, since enacted by Article 35 of the Hague Regu-
lations. Any act contrary to a capitulation would constitute
an international delinquency if ordered by a belligerent gov-
ernment, and a war crime if committed without such order.
Such violations may be met with reprisals or punishment of
the offenders as war criminals.”

In this connection I recall again the statement by former
Prime Minister Churchill on 8 May 1945 which he made when
announcing the unconditional surrender of Germany. I have
quoted it once before, in my opening statement: *

“Hostilities will end officially at one minute after midnight
tonight, Tuesday, 8 May.

* The New York Times, 9 May 1945, p. 8.

1193

"The Germans are still, in places resisting the Russian
troops, but should they continue to do so after midnight, they
will of course deprive themselves of the protection of laws of
war and will be attacked from all quarters by the Allied troops.”

The Germans were, therefore, authorized according to the laws
of war, if only because of the breach of the military capitulation
alone, to treat those former members of the Yugoslav Army who
thought they could continue fighting the German troops as war
criminals and to counter their resistance with reprisals ; and it
cannot now be said that the German commanders committed war
crimes by so doing.

That was the direct effect of the military capitulation on those
members of the capitulating Yugoslav Army who continued to
resist the Germans ; and this direct effect is independent from the
participation of the Yugoslav Government in the capitulation
agreement. I will deal with the indirect effect which capitulation
of the armed forces of a belligerent nation and its government
had on the status of all the resistance forces of the country con-
cerned when I turn now to these resistance forces.

The status of the partisans, according to the laws of war, de-
pends on two fundamental factors.

1. The clear division of the enemy population into armed forces
and peaceful inhabitants, which I have already indicated in
another connection.

2. The fact that war exists between states and only between
states.

As a consequence of the Brussels and the two Hague confer-
ences and as a compromise between the strict views of the larger
countries with standing armies and the efforts of the smaller
countries to achieve for their peoples a right of defense in a less
permanent form, we have Articles 1 and 2 of the Hague Con-
vention.

They contain the minimum demands which can be made on
irregular combatants in order to regard them as legal belligerents
according to the laws of war. It is true that some delegates at the
time thought that from certain declarations and from the pre-
amble of the Convention, Articles 1 and 2 could not be interpreted
as exclusive. But we know today that development has outdated
those reservations and opinions. The prophecy made by the Swiss
delegate as long ago as at the Hague negotiations in 1899 has
also come true. It was that in the final analysis only the text of
the law is decisive. In this respect, too, the preponderance was
evident which codified rules in a sphere so full of uncertainties
as the laws of war quite naturally contain.

1194

I quote Professor Oppenheim’s statements:

“Articles 1 and 2 of the Hague Regulations make the greatest
possible concessions regarding hostilities committed by irregu-
lars. Beyond the limits of these concessions belligerents will
never be able to go without the greatest danger to their troops.”

And how unrealistic the opinions of some of the representatives
of the smaller states were at that time can be seen, for instance,
from the fact that the Belgian delegate, Lambremont, asked quite
seriously what the fate of a citizen would be who on his own in
an unoccupied part of the country committed hostile acts in order
to halt the advance of the enemy. There was never any doubt that
such an inhabitant robbed himself of the protection afforded by
the laws of war.

The very definite interpretation of the governments, especially
the governments of the United States and Great Britain concern-
ing the exclusiveness of Articles 1 and 2 of the Hague Rules of
Land Warfare* is set down in the provisions of the military
manuals of these countries in which no right, beyond the text of
Articles 1 and 2, is recognized on behalf of the population to
participate in combating the enemy.

With regard to the uprising which is sanctioned under definite
provisions in Article 2, it can be seen from the intentional choice
of the term “on the approach of the enemy” that this can only be
recognized in an area into which the enemy has not yet penetrated.
This is stressed, for instance, in paragraph 29 of the British
Rules of Land Warfare, and similarly emphasized in the comments
of Oppenheim-Lauterpacht which ran as follows :

“It is of particular importance not to confuse invasion with
occupation in this matter. Article 2 distinctly speaks of the
approach of the enemy and thereby sanctions only such a levy
en masse as takes place in country not yet invaded, although
the invasion has not yet ripened into occupation, a levy en masse
is no longer legitimate.”

Since, as I have already stressed in my investigation of the
status of the Yugoslav partisans, I proceeded from the standpoint
of the prosecution that an effective German occupation was not
shown in all parts of Yugoslavia, this clarification may perhaps
be of some importance. Because, if the prosecution also disputes
an effective occupation, then it certainly cannot be denied that
throughout Yugoslavia and Greece after the end of the campaigns
the conditions for a legitimate peopled rebellion in the form of an
organized uprising were no longer present.

* Annex to Hagrue Convention No. IV, op. cit. supra, p. 15.

893964—51 78

1195

Therefore, the prosecution takes into account for the Yugoslav
and Greek partisans the fulfillment of the conditions in Article 1
of the Hague Rules of Land Warfare. But if we examine the
partisan units from this point of view, we discover first of all,
that they were obviously not militia and voluntary corps in the
sense of Article 1 which means either the army of the country
concerned, or part of it, or who were connected with the regular
army or still existing parts of it.

Just as little did they fulfill the further conditions set down
in Article 1 for recognition as legal combatants.

1. Someone had to be in charge who is responsible for his sub-
ordinates.

This provision is not absolutely clear. Oppenheim-Lauter-
pacht’s comment on this is — “It probably means responsible to
some higher authority.”

This demand is in line with the viewpoint emphasized in the
British Rules of Land Warfare, “* * * so that there may be no
doubt that they are not partisans acting on their own responsi-
bility/'

The whole fundamental difference which exists between par-
tisans, even organized ones, and the militia and voluntary units,
to which Article 1 of the Hague Rules of Land Warfare refers,
is expressed in these words. Every guerrilla or partisan band has
its leader, but, of course, if he merely wears an officer's uniform,
as may have been the case occasionally in Yugoslavia or Greece,
or if he were an officer in the dissolved army, this does not suffice
to make these men into a recognized militia or a voluntary unit.
This applied, without doubt, to the initial period, which is the
one period of interest to me as defense counsel for Field Marshal
List.

2. They must wear a definite, fixed insignia, recognizable from
a distance, and

3. Must carry their weapons openly.

These two demands are closely bound up with each other, be-
cause both refer to a certain habit of the partisans which has been
from time immemorial a characteristic of this type of irregular ;
a habit which the partisans in Yugoslavia and Greece also ex-
hibited to the largest possible extent. I mean the alternate
appearance as armed resistance forces and — after committing
surprise raids, or if danger is near — as seemingly peaceful citi-
zens. The valid general principle in this respect is clearly ex-
pressed in the British Rules of Land Warfare —

“The division of the enemy population into two classes, the

armed forces and the peaceful population, has already been

1196

mentioned. Both these classes have distinct privileges, duties,
and disabilities. It is one of the purposes of the laws of war
to insure that an individual must definitely choose to belong to
one class or the other, * * * and shall not be allowed to kill or
wound members of the army of the opposed nation and subse-
quently, if captured or in danger of life, to pretend to be a
peaceful citizen.”

From this principle arises the demand set down in Article 1,
paragraph 2, for a fixed insignia, which cannot be removed at
the wearer's discretion.

For the same reason, the provisions of Article 1, paragraph 3
are, of course, not fulfilled if the weapons are merely carried
openly during combat, as the partisans may have done occasionally
when they were not only acting as snipers. The provisions in
paragraph 3 are not adhered to, if, when the fighting is over —
or as soon as they are in trouble — the irregulars hide their
weapons or get rid of them somewhere, in order then to appear as
seemingly peaceful civilians, as was usual with the partisans in
Yugoslavia and Greece. Paragraph 26 of the British Rules of
Land Warfare notes in this connection —

“The third condition provides that irregular combatants shall
carry arms openly. They may therefore be refused the rights
of the armed forces if it is found that their sole arm is a pistol,
hand grenade, or dagger concealed about the person, or a
sword stick, or similar weapon, or if it is found that they have
hidden their arms on the approach of the enemy.”

The fact that a violation of this principle deprives the perpe-
trator of the protection of the laws of war has been stated in
Article 82 of the American Instructions of 1863. This contains a
comprehensive characterization of the guerrillas and partisans
which, in many respects, still applies to date. I quote :

“Men or squads of men who commit hostilities, whether by
fighting, or inroads for destruction or plunder, or by raids of
any kind, without commission, without being part and portion
of the organized hostile army, and without sharing continuously
in the war, but who do so with intermitting returns to their
homes and avocations, or with the occasional assumption of the
semblance of peaceful pursuits , diverting themselves of the
character or appearance of soldiers such men or squads of men
are not enemies, and therefore if captured are not entitled to
the privileges of prisoners of war, but shall be treated sum-
marily as highway robbers or pirates”

1197

Spaight writes on the same question : *

“It cannot be seriously questioned that those francs-tireurs
who made themselves indistinguishable from the peaceable
population either by removing their distinctive badge, or as
some did by changing into civilian garb after committing acts
of aggression, were not entitled to belligerent rights. No army
commander will suffer his troops to be menaced by men who
claim now the privileges of combatants, now those of the peace-
ful inhabitants.”

If we look at the evidence which the prosecution has submitted
as proof of the fact that the Yugoslav and Greek partisans com-
plied with the demands of paragraph 2 of Article 1 of the Hague
Rules of Land Warfare, then we find that the partisans are sup-
posed to have worn a cockade or a Soviet star, or certain other
insignia in their lambskin caps — the Chetnik partisans also had
black beards and crossed cartridge belts.

Of course, from the presence or the absence of a beard, or its
coloring, one can draw no conclusions about the status of a person
according to the laws of war, and the black beards of the Chetniks,
on which the prosecution relied, are therefore not insignia in the
sense of Article 1, paragraph 2.

The fact certainly cannot be doubted that Serbian cockades,
skull and crossbones, red star, small ribbons, or tassels on the
usual lambskin caps worn in the country are not insignia which
can be seen from a distance. And it is just as certain that these
articles worn on the headgear are definitely not fixed insignia in
the sense of Article 1, paragraph 2.

Where is it customary for the members of an armed force only
to be recognizable by their headgear? And why did the partisans
not wear these insignia fixed to their clothing? The reason is
obvious. I maintain that the partisans, as far as they wore
insignia at all, only wore them on their headgear because these
could be quickly thrown away, in the same way as their weapons
and cartridge belts were usually thrown away or hidden, so
that after the fighting or when the Germans were closing in and
danger threatened, they could give the appearance of peaceful
civilians. Insignia fixed to the clothing would have prevented
these tactics which were usual among all partisans in the Balkans.
That is why there is not even the slightest indication, not to speak
of proof, that the partisans wore any kind of insignia which
could not be removed immediately.

The absence of a fixed insignia also gave the partisans the
constant opportunity, under the guise of peaceful civilians and

* Spaight, op. cit. supra , pp. 42-43.

1198

harmless peasants, to commit acts of sabotage in the territory
occupied by German troops. They made extensive use of such
tactics, which have always been closely bound up with the partisan
methods of warfare. Such conduct was war treason, even if the
perpetrator would otherwise be credited with the full rights of
a belligerent. I refer to paragraph 445 of the British Rules of
Land Warfare —

“Many other acts, however, which may be attempted or ac-
complished in occupied territory, or within the enemy’s lines, by
private individuals or by soldiers in disguise, are also based
on war treason, although perfectly legitimate if done by mem-
bers of the armed forces * * *.”

The American armed forces in the Philippines took the same
point of view during the fighting in 1900-1901.

4. During their operations they must observe the laws and
customs of war.

The defense has submitted extensive evidentiary material to
show that the Greek and Yugoslav partisans quite generally did
not observe the laws and customs of war. This evidence has not
been refuted by the fact that the prosecution referred to a few
individual cases in which the partisans did observe the laws of
war.

I therefore maintain that the partisans in Yugoslavia and
Greece did not fulfill the four demands set down in Article 1 of
the Hague Rules of Land Warfare for legal belligerents.

The examination of whether the partisans complied with Article
1 of the Hague Rules of Land Warfare embraces only one side of
the problem of the status of the irregulars ; the other side is gov-
erned by the fact that war exists between states.

The two authors, Nurick and Barret, quoting a number of the
most well known authorities on international law, state :

“In addition to the requirements set forth in the Hague
Regulations, it is also required, before the members of a mili-
tary force are entitled to be treated as lawful belligerents, that
they serve a political entity, which is a state de jure or de facto,
or which at least exhibits certain indicia of that status. This
additional requirement is a fundamental premise implied in
the Hague Regulations, and an individual does not become a
lawful combatant under Article 1 thereof merely because he
owns a uniform, carries arms openly and is commanded by a
person responsible for his subordinates.”

This statement, of course, is not based on Article 1 of the
Hague Rules of Land Warfare which neither expressly nor tacitly

1199

contains this further requisite, but it is based on the principle
which has been generally recognized from time immemorial, that
war exists between states.

Even Cicero applied this principle to the supporters of Antonius
and treated them, therefore, as robbers.

And one of the earliest authors of international law, Gentili,
stated that war must be public and official on both sides, and
that there must be sovereigns on both sides to direct the war.

The American Instructions of 1863 contain this principle in
articles 20 and 57.

Professor Westlake, a prominent authority on international
law, states:

“We therefore accepting the definition of Grotius in other
respects, will say that war is the state or condition of govern-
ments contending by force. Whether and how far individuals
can be treated as parties to a war is a question to be discussed
in the sequel, and is not prejudiced by the use of the word
‘government,’ as indeed it would not have been by the use of
the word ‘state’. If they are treated as parties to a war, that
can only be justly done when there is a reason for their being
identified with their state or government.”

Professors Oppenheim and Lauterpacht also state:

“War a contention between states :

“To be war, the contention must be between states * * *.
A contention may, of course, rise between the armed forces
of a state and a body of armed individuals, but this is not
war * * *. Nor is a contention with insurgents or with pirates
a war.”

They state expressly that this characteristic of war also decides
whether so-called guerrilla war is really war in the technical
sense of the word.

Similarly in a leading article, “The Guerrilla and the Lawful
Combatant” by George C. Wilson in the American Journal of
International Law, July 1943, it is stated, particularly with ref-
erence to the status of the partisans —

“It may not always be easy to determine when a guerrilla
party is acting in aid of the regular forces, but as the marks
of a regular force in its uniform, flag, etc., are distinguishing,
the burden of proof may properly rest upon the irregular party
to establish its lawful identity if it expects treatment under
the laws of war.

“War is between states and the forces entitled to the rights
of the laws of war are those duly enrolled in state forces or at

1200

least under its control and for whose acts the state is re-
sponsible.”

We can certainly assume that these authors took into account
the historical events and the practice of belligerents, at least as
much as the scientific reasons ; and in actual fact we state that on
all the occasions in question the commanders of armed forces and
the governments, when considering the problem of the status of
the irregulars, worked on the principle that war exists only be-
tween states, and that the armed forces of both sides must be
identified with the states ; as a result of this, a war, in the sense
of international law, no longer exists if a government or its armies
have capitulated, or the government has been expelled, its armed
forces captured, and its territory occupied.

The principle is indisputable; and no injury is done to its
value by the fact that belligerents and their commanders, in a
few cases in which the enemy government was still in its own
country and fought the invader there with so-called guerrilla
tactics, referred illegally to it; as in the case of Maximilian von
Oesterreich [Austria] toward the armed forces of the rival gov-
ernment of Juarez, and the British toward the regular armed
forces of the Boer Republic during the South African war. The
fact that the American armed forces in the Philippine War, 1899-
1902, made a justified difference between regular armed forces of
the Philippine Government which was in the country, and the
guerrilla bands who were not part of the regular armed forces,
is in complete agreement with the view taken by the defense
in this trial with regard to the status of irregulars.

The principle, as such, is well established and universally
recognized. Only in cases in which the position is not quite clear,
the government or its entire forces not having capitulated, it may,
at times, be difficult to decide whether a state of war still exists
and whether the irregular forces are to be identified with the
defeated government or not. The order issued by General Grant
to General Sheridan during the Civil War on 17 May 1865, after
the capitulation of Lee’s and Johnston’s armies when only the
troops commanded by General Edmund Kirby Smith were still
in the field in the trans-Mississippi area, provides a most sig-
nificant and informative precedent. This order was based on the
principles formulated in Articles 20 and 57 of the Instructions for
the Guidance of the Armies of the United States in the Field of
1863 and read:

“If Smith holds out, without even an ostensible government
to receive orders from or to report to, he and his men are not
entitled to the consideration due to an acknowledged belligerent.

1201

Theirs is the condition of outlaws making war against the only
government having an existence over the territory where war
is not being waged.”

The fact that the order was not carried out because General
Smith did not continue his resistance but also surrendered on
26 May 1865 does not diminish its importance as a very important
precedent. Neither does the fact that this order was issued in
the American Civil War, and not in a war between different
nations, detract from its general significance. The Confederate
States had been recognized as belligerents by President Lincoln's
blockade proclamation dated 19 April 1861 and enjoyed the full
rights accorded to a belligerent. The principles evolved in this
so-called Civil War, embodied in the Instructions for the Armies
of the United States of 1863 and followed in the practice of both
of the contending armies have, as we know, provided the most
important foundation for the subsequent codification of the laws
of war.

Both of the joint authors Nurick and Barret, after examining
both the historical instances in which the principle that war
exists only between states is of practical importance, and the
theoretical foundations of this principle, arrive at the following
conclusion :

“It appears clear, however, that even under the most humane
of interpretations the requirement that combatants serve a
government has been regarded as satisfactory only where it is a
responsible and fairly representative political entity which can
exercise authority over its armed forces. If there is a formal
surrender by the enemy government and capitulation of the
main body of armed forces, there is a noteworthy precedent,
particularly in the position taken by General Grant in the Civil
War, for regarding as unlawful combatants those who continue
to resist, even though they may be substantial in number. The
fact that the surviving combatant may be impelled by patriotic
motives in continuing to resist does not appear to have been
regarded as material to their status as lawful combatants.
Of course it may be that those who continue to resist may be
large in number and may themselves constitute a de facto gov-
ernment; if so, they should be treated as lawful combatants.
Although there is little authority, the complete military defeat
of the enemy armed forces, the disintegration of the govern-
ment, and the occupation of its territory would seem to have the
same consequences upon the status of those who continue to
resist as does a formal surrender."

1202

The view of these two authors is in line with Professor Oppen-
heim’s statement.*

“On the other hand, one speaks of guerrilla war or petty
war when after the defeat and the capture of the main part
of the enemy forces, the occupation of the enemy territory, and
the downfall of the enemy government, the routed remnants
of the defeated army carry on the contention by mere guerrilla
tactics. * * * Now, the question whether such guerrilla war is
real war in the strict sense of the term in international law
must, I think, be answered in the negative, for two reasons.
First, there are no longer the forces of two states” (or even
the forces of a state and of an opposing government) “in the
field, because the defeated belligerent state has ceased to exist
through the military occupation of its territory, the downfall
of its established government, the capture of the main part
and the routing of the remnant of its forces. * * * If then,
guerrilla war is not real war, it is obvious that in strict law
the victor need no longer treat the guerrilla bands as a bel-
ligerent power, and their captured members as soldiers.”

In accordance with these principles, it is beyond doubt that
the Yugoslav and Czech partisans cannot be regarded as lawful
combatants. For after the surrender of the Yugoslav Government
and its armies and after the surrender of the Greek armies, the
Germans on the Balkan peninsula were no longer opposed by any
lawful belligerents whose existence might have entitled any forces
in these countries to claim treatment as lawful belligerents — even
if all other conditions essential to such a recognition had been
satisfied — which, however, they had not.

The fact that exile governments were formed in London which
endeavored to wield a kind of paper sovereignty does not make
any difference. Quite apart from the fact that the Yugoslav
Government by its act of surrender had precluded itself from
carrying on the prosecution of the war, the following considera-
tions apply to these governments in exile.

The multifarious political structure of the partisans in Yugo-
slavia and Greece, some of whom were fighting each other, shows
that they cannot be identified with these governments in exile;
and the latter, on the other hand, were unable to exert any
authority on the groups of partisans which were very loosely
organized, in their initial stages at any rate. Besides, the prose-
cution has failed to establish any kind of connection between
the partisans and the governments in exile in London.

* Oppenheim, op. eit. supra, pp. 77-78.

1203

Finally, the principle applies that guerrilla forces can never
derive their claim for recognition as lawful belligerents from a
government expelled from its country.

This axiom is already implicit in General Grant's order dated
17 May 1865 specifically in the sentence referring to the soldiers
under General Smith in the event of their continuing to fight,
which states:

“ * * * Theirs is the condition of outlaws, making war
against the only government having an existence over the terri-
tory where war is now being waged."

This principle is further enunciated in Article 85 of the In-
structions of 1863 and in paragraph 349 of the United States
“Rules of Land Warfare" of 1940, where explicit reference is
made to war rebels in the following words:

“If captured they may be punished with death, whether
they rise singly or in small or large bands, whether or not
they have been called upon to do so by their own expelled
government * * *."

General Eisenhower's declaration dated 15 July 1944 with
respect to the French resistance forces, referred to by the prose-
cution, is not a proper precedent which would invalidate the
general principle that it must be possible to identify resistance
forces with their respective governments and that the surrender
of the government precludes the right of resistance forces to claim
recognition as lawful combatants. This declaration was based
upon an attempt to compel recognition by threats against German
prisoners of war. It was not recognized by the German Govern-
ment.

Neither does the position taken by the Committee of the Inter-
national Red Cross during the recent war in regard to the treat-
ment of partisans speak against the existence of the principle
adduced by the defense. The committee did not subscribe to the
view that the partisans, provided they complied with certain
conditions, were to be accorded the privilege of treatment as
prisoners of war but that they ought to receive such treatment.
The sentence in the memorandum dated 17 August 1944 is a clear
confirmation of the legal argument put forward by the defense
in this case —

“The International Committee considers that the above-men-
tioned principles should be applied regardless of any legal
argument relating to the recognized existence or the belligerence

1204

of the authorities to which the combatants in action claim to
belong.”

I have already said in my opening statement that it may well
be expedient for a belligerent to recognize irregular combatants as
lawful belligerents if they act on the orders of a responsible
commander and observe the laws and customs of war — this never
happened in Yugoslavia — and particularly in the event that the
irregular forces have taken the field in great numbers and have
formed a de facto government, a fact emphasized by Nurick and
Barret. This in no way modified the fact that, from the point
of view of international law, it is left to the opponent to decide
whether and when he wishes to recognize the irregular forces as
belligerents. In this respect, the statement by Professor Oppen-
heim applies.*

“If, then, guerrilla war is not real war, it is obvious that
in strict law the victor need no longer treat the guerrilla bands
as a belligerent power and their captured members as soldiers.
It is, however, advisable that he should do so, so long as they
are under responsible commanders and observe the laws and
usages of war. For 1 see no advantage or reason why, although
in strict law it could be done, those bands should be treated
as criminals.”

It cannot, therefore, be a war crime that the German com-
manders, by denying recognition as belligerents to the partisans,
acted as the laws of war authorized them to act. The principle
of military necessity is always paramount in war, and this
principle compelled the German commanders, in a dangerous
position, to take stringent action against the unlawful, i.e., unlaw-
ful also under international law, activity of the partisans in
order to protect their troops against a population fighting them
by treacherous and insidious methods, actuated as the German
commanders were by a sense of responsibility in regard to the
task assigned them within the scope of the German over-all
direction of the war.

Whoever feels inclined to invoke arguments of humanity and
chivalry ought to be reminded that partisan warfare must not be
viewed as transfigured by the light of one's own war propaganda,
but, as Rolin remarked so appropriately as early as 1875, “in
its sordid and vulgar reality.” One must not merely visualize
the partisans executed as rebels and the burned down houses from
which members of the occupation forces were shot at but also the
mutilated corpses of German soldiers murdered by snipers — this

* Ibid., p. 78.

1205

was the way the partisan fighting started — and the large number
of victims claimed by a treacherous population, which filled the
daily casualty reports of the troops. Unbiased observers have
always repudiated guerrilla fighting and partisan warfare. From
the time that Professor Wheaton wrote 1 — “In modern warfare
partisan and guerrilla bands are regarded as outlaws, and may be
punished by a belligerent as robbers and murderers,” the partisan
problem has not changed except for the extent of partisan ac-
tivity, which has increased on a gigantic scale, and the greater
cruelty with which guerrilla warfare was waged by the irregu-
lars, especially during the last war.

The judgment on guerrillas and partisans remains unchanged.
In the most recent edition of Professor Hyde’s book, dated 1945,
a time when the partisan problem encountered in the war just
ended could be surveyed and appraised in its full significance, we
find the following statement: 2

“The law of nations, apart from the Hague Regulations above
noted, denies belligerent qualification to guerrilla bands. Such
forces wage a warfare which is irregular in point of origin and
authority, of discipline, of purpose, and of procedure. They
may be constituted at the beck of a single individual ; they lack
uniforms ; they are given to pillage and destruction ; they take
few prisoners; and are hence disposed to show slight quarter.
According to the late Dr. Lieber, they may be described as self-
constituted sets of armed men, in times of war, who form no
integrant part of the organized army, do not stand on the regular
pay roll of the army, or are not paid at all, take up arms and
lay them down at intervals, and carry on petty war (guerrilla)
chiefly by raids, extortion, destruction, and massacre, and who
cannot encumber themselves with many prisoners, and will,
therefore, generally give no quarter. They are peculiarly danger-
ous because they easily evade pursuit, and by laying down their
arms become insidious enemies ; because they cannot otherwise
subsist than by rapine, and almost always degenerate into simple
robbers and brigands.”

The very people who admit only the patriotic motives which
are so often invoked on behalf of the resistance forces, will have to
concede that their opponent is, nonetheless, entitled to punish them
as criminals. That has been quite explicitly stated in Oppenheim-
Lauterpacht.

The British prosecutor in the trial of Field Marshal Kesselring,
Colonel Halse, took the same view in his opening statement —

1 Wheaton, op. cit. supra, footnote (a) 172, pp. 379-380.

2 Hyde, op. cit. supra, p. 1797.

1206

“There are some war crimes which are only crimes in respect
of one side. The partisans, for instance, (and I say it quite
openly) by attacking the German forces in rear were guilty
of a crime against the German law ; I say intentionally against
the German law. So far as the Italian and Allied law was
concerned they were heroes, they did commit a war crime, and
if they were captured by the Germans, the Germans were
undoubtedly entitled to try them for committing a war crime,
and if found guilty of committing that war crime the Germans
were entitled to sentence them to death.”

Now this brings me to the second main problem of the trial,
the problem of hostages. In my opening statement, I already
expounded this problem in some detail, and I believe that in many
respects I may now refer to my previous exposition.

The defense contends that, according to the laws of war, the
killing of human beings by way of reprisals is an admissible and
even indispensable instrument of force in certain circumstances
used in order to induce the opponent to refrain from violating
the provisions of international law. The defense maintains that
the killing of security hostages — that is, the killing of persons
taken or detained for the avowed purpose of their being subjected
to such reprisals in the event of actions contravening international
law being committed by the enemy troops or enemy civilian popu-
lation — is not precluded in such cases. The defense further
asserts that the killing of security hostages, explicitly permitted
by the United States “Rules of Land Warfare,” as far as it com-
plies with the conditions warranting a reprisal measure, is not
covered by the definition of war crimes as laid down by Article
6(b) of the London Charter and Article II, paragraph l(fr) of
Allied Control Council Law No. 10.

It has been emphasized in the judgment of the International
Military Tribunal that the Charter reflects and is the expression
of international law as it existed at the time of the drawing up
of the Charter.

This is as clearly stated in Article 6(b) of the Charter as in
Article II, paragraph l(fi) of Allied Control Council Law No. 10.

The prosecution in the present trial has also stated that both
provisions represented an exact codification of preexisting inter-
national law. Both provisions define war crimes as “violations
of the laws and customs of war,” the inference being that they
were not intended to identify any actions as war crimes which
had not heretofore been regarded as such.

The London Charter and Allied Control Council Law No. 10,
then, refer, with respect to war crimes, to the laws and customs

1207

Df war as they existed before the promulgation of these pro-
visions.

Even if the reference to the laws of war as practiced heretofore
had not been as unequivocal as it in fact is, so that there re-
mained any doubts as to whether Article 6(b) of the Charter
and Article II, paragraph 1(b) of the Control Council Law merely
referred to preexisting laws and customs of war or whether they
were intended to provide a new definition of war crimes, such
doubts would have to be resolved along the lines of the first
alternative. For the Charter was drawn up “in the exercise of
the sovereign power of legislation vested in those countries to
which Germany had unconditionally surrendered.” This is par-
ticularly true with respect to Control Council Law No. 10. But
in the United States as well as in Great Britain according to the
principle which holds true for the application of domestic legis-
lation with regard to international law it may be assumed in
dubious cases that it has not been intended to overrule inter-
national law.

Therefore, the summary interpretation of Article 6(b) of the
London Statutes and of Article II, paragraph 1 (b) of Control
Council Law No. 10, according to which killing of hostages is
supposed to be a war crime, ought to be supplemented — and that
is tacitly understood — by pointing out that killing hostages is a
war crime only to the extent to which it constituted such accord-
ing to martial law as has been in force until now. This summary
interpretation which is expressed so generally, is just as incorrect
and means just as little as the famous phrase of Vattel — “The
very liberty of the hostages is at stake.”

Both statements are correct only in those cases in which hos-
tages are killed as punishment for not fulfilling an obligation ;
they do not concern the killing of hostages from the point of view
of reprisals.

The definition which the International Military Tribunal has
given with regard to Article 6(b) of the Charter confirms that
above regulation does not prejudge the problem of reprisals.

“In as much as war crimes are concerned, International Law,
as has been pointed out before, has recognized the crimes
designated in Article 6, Section (b) of the Charter as war
crimes. Articles 46, 50, 52, and 46 of the Hague Convention
of 1907, and Articles 2, 3, 4, 46, and 51 of the Geneva Con-
vention of 1929 refer to them. It has been so generally ac-
cepted that violations of these regulations constitute crimes for
which the guilty persons are liable to punishment that there
cannot be any further discussion with regard to that issue.”

1208

Thus, in the opinion of the International Military Tribunal,
the actions designated in Article 6 constitute war crimes because
they entail violations of the Hague Regulations. It is, however,
known that the very essence of reprisal measures, in as far as they
are permissible according to the laws of war, is that a violation
of international law is answered by the opposing party with an
action which in itself also constitutes a deviation from the laws
of war and the purpose of which is to compel the opponent to
act in a lawful manner. Since also Article 50 of the Hague
Regulations does not forbid reprisals — I shall discuss that later —
this leads us to the conclusion that such actions which are car-
ried out under such conditions as warrant reprisals according to
international law have to be expected from the definition of war
crimes as given in the London Charter and in the Control Council
Law.

This is the second reason why in these proceedings, in as much
as they concern the hostage problem, all that matters in the state
of international law as it was when the charter was issued.

There has always been much written against the killing of
hostages. If we analyze their reasons we find that those authors
who declared themselves opposed to the killing of hostages mistook
their own ideas of justice, humanity, and morality, for the gen-
erally accepted rules of warfare — I am using an expression by
Professor Oppenheim — just as frequently as they were influenced
by the misconception that Article 50 of the Hague Regulations
for Land Warfare referred to the problem of reprisals and
hostages. Their point of view can in the main be identified with
President Roosevelt’s statement of 25 October 1941 that “Civilized
peoples long ago adopted the basic principle that no man should
be punished for the deed of another.”*

This attitude can be readily understood from the point of view
of humanitarian principles, but it is also quite certain that it is
incorrect from the point of view of the laws of war. Thus, also,
the two authors, Hammer and Salvin contend that President
Roosevelt’s statement is misleading.

The humanitarian motives in favor of the view that hostages
should not be killed will have to be acknowledged by everyone.
It is indeed a terrible thing to make people suffer for the action
of others, but it is just that which constitutes the coercive force
of reprisal measures.

“Reprisals are an extreme measure because in most cases they
inflict suffering upon innocent individuals. In this, however,
their coercive force exists, and they are indispensable as a last

* The New York Times, 26 October 1941, p. 1.

1209

resource”, states paragraph 454 of the British Manual of
Military Law. h

It is also a terrible thing to kill innocent civilians, old men,
women, and children by means of bombs and burning phosphorous,
and yet we have lived to see such measures ordered and carried
out to a very large extent. I

The first and foremost principle in war is military necessity
which has been expressed by Professor Oppenheim as follows:*

“Victory is necessary in order to overpower an enemy, and
it is this necessity which justifies all the indescribable horrors
of war, the enormous sacrifice of human life and health, and
the unavoidable destruction of property, and devastation of
territory. Apart from restrictions imposed by the law of
nations upon belligerents, all kinds and all degrees of force may
be, and eventually must be, used in war in order that its pur-
pose may be achieved in spite of their cruelty and the utter
misery they entail. As war is a struggle for existence between
states, no amount of individual suffering and misery can be
regarded ; the national existence and independence of the
struggling state is a higher consideration than any individual
well-being.”

If one reads what authors on international law have written
about the problem of hostages, one finds that French scientists,
above all, have expressed themselves in the most passionate and
eloquent manner against the killing of hostages and, as a matter
of principle, against the taking of hostages generally — that is, the
scientists of that nation, a commander of which, General LeClerc
in the course of this war ordered his troops to shoot hostages
at the ratio of 1 :5. And if one further realizes that at the
beginning of the last 85 years, a period of time which has been
of decisive importance for the development of modern laws of
war, we have the regulation contained in Article 58 of the Amer-
ican Instructions of 1863, to the effect that death will be the
reward if the enemy should enslave prisoners of war, and that
at the end of the above-mentioned period of time we find the threat
which has been circulated within the American armed forces that
punishment is to be meted out at a ratio of 200:1, then, in my
opinion, one has to admit that those authors cannot be considered
competent authorities in matters of martial law, insofar as it con-
cerns the hostage problem.

There is no agreement regulating this matter. The problem
of reprisal matters and of hostages has not been regulated in

* Oppenheim, op. cit. supra, pp. 74-75.

1210

the Hague Convention of 1899 and 1907, and before that the
powers represented at the Brussels Conference of 1874 had to
desist from a regulation of this problem by agreement, owing
to the difficulties involved in arriving at such an agreement. In
Commission No. 2, which was dealing with the laws of land war-
fare, it was expressly stated that Article 50 of the Hague Regu-
lations did not prejudge the problem of reprisals — “sans rien
prejuger quant aux repressailles,” as Professor Rolin, the referent
of the commission, remarked in his report to the plenary assembly
of the Hague Peace Conference. That has been pointed out ex-
pressly in the British Manual of Military Law as well as in the
commentary by Oppenheim-Lauterpacht and has also been ex-
pressed already by Professor Holland in his book Laws and
Customs of War on Land which was published at the behest of
the British War Office in 1904.

Since the problem of security hostages is included in the prob-
lem of reprisals of which it is a part, one cannot, of course, say
that Article 46 of the Hague Regulations for Land Warfare ex-
cludes the execution of security hostages. Because it is the very
nature of a reprisal measure that a belligerent may, in its execu-
tion, deviate from the rules of martial law which, in other cases,
are binding.

Thus, this problem has remained a matter of martial usage.
As I have said before, a great number of authors cannot be
regarded as reliable authorities since they are so obviously
prejudiced with regard to this problem. They are prejudiced
to such an extent that many of them consider even the taking
of hostages as contrary to international law, an attitude, which,
in view of the actually existing usage, cannot be incorrect. One,
therefore, has to rely entirely on the practices of the belligerents,
on the measures, orders, and statements of their commanders,
as well as on military manuals if one wants to establish martial
usage with regard to the problem whether or not human beings,
and that includes security hostages, may be killed by way of
reprisals.

The American Instructions of 1863, which have had the utmost
influence on the development of modern laws of war, regulated
reprisals in Articles 27, 28, and 58. They stated that reprisals
are an absolutely necessary means of protection against crime
committed by the opposing party.

Death was ordered to be the retaliation for the enslavement
of prisoners of war.

On 30 July 1863, President Lincoln threatened to have prisoners
of war executed in reprisal for the killing of Negroes.

893964—51 79

1211

General Sherman ordered 54 prisoners of war to be executed
in reprisal for the killing of 27 of his soldiers whose bodies had
been found bearing the inscription, “Death to the Looters.”

During the Russian-Turkish War of 1877, the Russian com-
mander of Thessaly ordered the inhabitants of houses, from
which shots had been fired at the Russian troops, to be hanged
from the doors of their houses.

It is well known that the Germans threatened to shoot hostages
in France during the Franco-Prussian War of 1870-1871, and
that they carried out such shootings in Belgium in the course of
the First World War as reprisal for the participation of the
civilian population in the fighting, a participation which was con-
trary to international law.

But those cases do not constitute cases of precedent to which
the defendants could suitably point.

It has, however, been shown that the enemies of Germany
seized security hostages and had them killed if they thought it
necessary to protect their troops in enemy territory against
illegal acts of the civilian population.

At the end of 1918 the Belgian commanders requested and
obtained hostages in the occupied towns of the Rhineland who
were to vouch with their lives for the security of the occupation
troops.

Above all, orders were issued in the course of the last war
after the Allied armies had occupied German territory which
has been the case ever since 1944, and executions of hostages have
been carried out which prove that such reprisal measures are also,
in the opinion of the Allies, permissible according to international
law.

The defense has proved the following cases :

1. The French commander, General LeClerc, threatened to have
Germans shot as hostages at the ratio of 5:1 for every French
soldier who was killed in Strasbourg by civilians.

2. The French General De Lattre de Tassigny threatened in
Stuttgart, to have German hostages shot at the ratio of 25:1
in the case that French soldiers were killed in the occupation
town.

3. At Birkenfeld the French forces threatened to shoot people
at the ratio of 10:1.

4. At Reutlingen, French troops shot hostages at the ratio of
4:1.

5. At Markdorf, hostages were threatened with shooting at the
ratio of 30:1; the executions were carried out at a ratio of 4:1.

6. The Russian occupation authorities had the threat published
in Berlin that hostages should be shot at the ratio of 50:1.

1212

7. The American Armed Forces in the Harz publicly threatened
reprisal executions at a ratio of 200:1.

I have already in my opening statement dealt with the very
important regulations regarding reprisal measures and hostages
which are contained in the military manuals of the United States
and of Great Britain.

The British Military Manual leaves open the question whether
or not people may be killed by way of reprisal. The manual leaves
it to the violated party to decide which measures it considers
necessary in order to insure that the reprisal measure will fulfill
its function as a means of compulsion.

In Professor Spaight’s fundamental work regarding the laws
of land warfare he answers the question whether or not people
may be killed by way of reprisal in the affirmative.*

«* * * an( j r ight to inflict reprisals — to retaliate — must
entail the right to execute in very extreme cases. Otherwise
there would be no effective means of checking the enemies’ worst
excesses.”

A reserved but very important statement was made during the
proceedings against Field Marshal Kesselring before the British
Military Tribunal at Venice by the Deputy Judge Advocate Gen-
eral of the British Army in his summing up.

“However, I have come to the conclusion that there is nothing
which makes it absolutely clear that in no circumstances —
and especially in the circumstances which I think are agreed
in this case — that an innocent person properly taken for the
purpose of a reprisal cannot be executed.”

Not one word about Article 6(b) of the London Charter or
Article II, paragraph 1(6) of Central Council Law No. 10.

The Rules of Land Warfare of the United States expressly admit
that hostages may be killed in reprisal.

The definition which appears in them with regard to reprisals
and hostages in many respects concurs with that given in the
British Manual. Paragraph 358d [United States “Rules of Land
Warfare”], which deals with reprisal measures, does, however,
contain the following extremely important regulation as well.

“Hostages taken and held for the declared purpose of insur-
ing against unlawful acts by the enemy forces or people may
be punished or put to death if the unlawful acts are neverthe-
less committed.”

* Spalght, op. tit . supra , p. 465.

1213

The two legal concepts of reprisals and hostages have sprung
from different roots and have developed separately for some time ;
recently, however, when war reprisals have also become a legal
concept, they have been integrated in the concept of security
hostages.

I was of the opinion that, with regard to this problem, I was
not only in agreement with paragraph 358 of the United States
"Rules of Land Warfare,” but also with the prosecution which had
in its opening statement stressed the close connection between
security hostages and reprisals —

"It is to be observed that, in principle, the purpose of taking
hostages is to be in a position in which one can apply reprisal
measures should the enemy (or, in peacetime, the other party to
an agreement) engage in an unlawful type of activity or in an
activity which is not in accordance with the agreement. That
is the reason why an imminent author on international law
says — "The entire hostage problem is intricately connected with
the problem of reprisals.”

From the legal memorandum of 19 November 1947 I see,
however, that the prosecution has in the meantime given up its
former point of view. In spite of that, I do believe that no other
view of this problem is possible than one which is in agreement
with paragraph 358d of United States Manual, "Rules of Land
Warfare.”

Also Professor Glueck, whose book "War Crimes, Their Prose-
cution and Punishment” apparently supplied the theoretical basis
for the policy which the Allied Powers have followed after this
war with regard to the prosecution of war crimes is fundamentally
of the opinion that the execution of hostages by way of reprisals
is permissible. For, at one point, he writes that the Germans
are supposed to have killed many hostages for flimsy reasons,
"and not by way of legitimate reprisals for illegal acts.”

The view has been expressed that there is a contradiction be-
tween paragraph 358d and paragraph 359 of the American Mili-
tary Manual because the former regulation permits reprisal ac-
tions against security hostages as well as that such may be killed,
whereas paragraph 359 states that people who have been taken
as hostages are to be treated as prisoners of war, against whom
reprisal measures must not be used. That has been pointed out,
e.g., by the two authors Hammer and Salvin, although these
authors in particular consider that it is permissible to kill hostages
if necessary.

*******

May it please the Tribunal, I had just discussed the relation of
the conditions in 358d and 359 of American “Rules of Land

1214

Warfare/' I shall now continue with page 103 at the top.

I have explained already in my opening statement that there is
not any contradiction whatsoever between those two regulations.
One only has to realize that there is, in this respect, a very impor-
tant difference between security hostages, on one hand, that is,
persons who are seized expressly for the purpose of being sub-
jected to reprisal measures, if necessary, and on the other hand,
hostages, in the traditional sense of the word, who generally must
not be subjected to reprisal actions since they are on the same
status as prisoners of war.

That is also the opinion of Professor Hyde. I should like to
submit those passages which I found in the last edition of Vol-
ume III of his book, "International Law Chiefly as Interpreted and
Applied by the United States'’, which appeared in 1945, insofar
as they concern this topic because in them the military situation
in which a commander of armed forces can find himself in the
occupied territory of a hostile population is taken into account in
a very realistic manner.

"After announcing that the offending forces or populations
generally may be lawfully subjected to appropriate reprisals,
the War Department Rules of Land Warfare of 1940 state
that hostages taken and held for the declared purpose of insur-
ing against unlawful acts by the enemy forces or people may
be punished or put to death if the unlawful acts are neverthe-
less committed. It is added that reprisals against prisoners
of war are expressly forbidden by the Geneva Convention of
1929 (No. [paragraph] 358d). Again, it is added in a later
section that ‘when a hostage is accepted he is treated as a pris-
oner of war' (No. [paragraph] 359). Possibly it is thought to
be laid down that hostages taken for the special purpose
announced are not to be treated as prisoners of war."*

"In the War Department Rules of Land Warfare of 1940,
the matter of retaliation is dealt with under the topic of
‘Reprisals’. In that connection it is said:

[Professor Hyde quoted here paragraphs 358 a-f of the “United States Army
Rules of Land Warfare” (pp. 89-90). However, the defense counsel omitted
these paragraphs from the quote in the closing statement for the defendant
List.]

"The foregoing statement illustrates the breadth of the lati-
tude which the military arm of the United States deems to be

* Hyde, op. cit. supra, p. 1903.

1215

the possession of a belligerent when obliged to defend itself
against the lawless acts of the enemy. The statement refers to
more than retaliating conduct as such; it explores the field
roughly and loosely described as that of ‘Reprisals’. It points
to conditions under which the armies of the United States may
be expected to regard themselves free to commit acts that are
normally prescribed as internationally illegal, and under cir-
cumstances when they are not of strict retaliating aspect.

“The statement quoted may serve to convince the reader —
as it does not the author — that if war ensues to which the
United States is a party, there may at times be anticipated
contempt by its foes for rules of warfare supposedly declara-
tory of international law, as against which American forces
may be obliged to protect themselves as best they may.”*

The hostage orders of the occupation powers in Germany which
have been submitted in these proceedings by the defense prove
that the views regarding the latitude which, according to para-
graph 358d, is allowed by way of protection against actions of
the opposing party which are contrary to international law, concur
with above opinion of Professor Hyde. These orders are based
on the fact that in war military necessity is the highest principle
and that it allows for every necessary application of power in as
far as there are no hard and fast rules of martial law which
obviate this. They have been issued in recognition of the fact
that there is one basic principle which governs the otherwise
rather uncertain sphere of reprisals, that is, the reprisals are a
permissible means of coercion — which means that a certain
amount of pressure must always be applied for the objective
of the reprisals to be reached which is to compel the enemy to
act in a lawful manner.

Ever since the Russian draft for the Brussels conference took
up the problem of reprisals, it has beeen tried to impose some
limitations on reprisals, particularly with regard to their extent
in relation to the gravity of the preceding violation of interna-
tional law perpetrated by the opposing party. It can be under-
stood that these regulations could not become fixed rules in as far
as they were at odds with the purpose of reprisal measures; that
is, to be effective means of coercion.

The ratios which appear in the Allied orders prove that the
regulation of the United States Military Manual according to
which reprisals must not exceed the extent of violence committed
by the enemy does not constitute a fixed rule of martial law.
All cases of precedent starting with Article 57 of the American

* Ibid., pp. 1842-1843.

1216

Instructions of 1863 which threatened the death penalty in retali-
ation for re-enslavement go rather to show that belligerents have
in fact always placed the purpose of the reprisal action, that is,
that it should be an effective means of coercion, above that theo-
retical postulation regarding the proportions of reprisal measures.

In practice we never find a ratio of 1 :10 being applied. Natu-
rally, the reprisal measure must not be excessive ; that is, it must
not exceed what is necessary. This limitation follows from the
general principle of humanity which limits application of power
to the necessary extent. The verdict whether or not one is dealing
with a military necessity and what is its extent depends on con-
ditions, whatever they may be, and is ordinarily the concern of
the military commander who has to make a decision, as has been
stressed by Professor Hyde : *

"If the term military necessity implies great latitude, and
is invoked by way of excuse in justification of harsh measures,
it is because the law of nations itself permits recourse thereto
in case of great need, and allows a belligerent commander to
be the judge of the existence and sufficiency of the need.”

As far as the carrying out of reprisal and hostage measures is
concerned, there is, of course a great difference if there occur
occasional attacks which are locally limited against members of
an occupation army, such as used to be the case in former times,
or, if after the pacification of a country, increasing resistance
threatens in the occupied territory. If irregular partisan bands
form, the very existence of which is contrary to international law,
this is sufficient justification for the occupying power to take the
most stringent reprisals and repressive measures. If raids,
attacks on installations of the occupation power, and murdering of
members of the occupation forces increase to such an extent that
they effect the very existence of the particular belligerent, then
no responsible commander will be able, in such a situation, to
avoid taking all, even the most stringent measures, in order to
suppress such crimes. Such was the situation which the German
commanders faced in Yugoslavia and Greece, but never has such
a situation been faced by a commander of the opposing parties.

The German people did not obey the appeal of their government
to form the “Werwolf,” and nevertheless the fear that such illegal
forces of resistance might become active was sufficient to evoke
a threat that punishment should be meted out at a ratio of 1 to 200
and very minor reasons led to the killing of German hostages at a
ratio of 1 to 4, as has been the case at Markdorf and Reutlingen.
The fact that the American Army did not face a situation in

* Hyde, op. cit. supra t p. 1802.

1217

which it would have had to carry out executions of hostages, since
the German civilian population did not participate in the fighting,
does not prove that such measures are inadmissible on principle.
The threats which were issued in accordance with paragraph 358d
of the American Military Manual prove the opposite. Nor can in
this connection the general indignation evinced by the killing of
two British soldiers by the Irgun followers be cited. This action
occurred in retaliation for the execution of two Irgun followers
who had been sentenced to death by a court, and therefore was
undoubtedly not a permissible reprisal measure.

In my opening statement* I stressed the somewhat unusual
conditions in the Balkans which are the result of the geographical
and ethnic situation there.

An Allied commander at no time had to face a situation such
as the defendants had to cope with in Yugoslavia and in Greece,
and at no time have soldiers of the Allied forces had to deal with
an enemy who fought so cunningly. Field Marshal List was
asked on cross-examination whether he believed that the people
of the Balkans were in any way different from those in the west-
ern nations, whether for instance they were more cruel. I should
like to supplement the answer he gave then by quoting from the
introduction to a book written by an expert on the Balkans, Miss
Edith Durhan, an English woman. The book is called, 'The
Slav Danger, 20 Years of Balkan Memories.”

“The reader enters an almost unknown new country, which
often appears to us as a remainder of medieval days, inhabited
by passionate and violent people * * * conspiracies, fanaticism,
intrigues, lust for power, and above all, blood * *

The population of the Balkans has achieved a way of living
which is entirely different from that of the actual European
cultural area; their passions are different, so are their impetuos-
ity, their stubborness, and cruelty. They have always been
there, and there particularly, all sorts of illegal fighters, from the
common robber to the vendettist son and grandson, from the
religious fanatic to the band leader, and all sorts of underground
movements.

Ninety years ago, the British report about the march of the
Turks, who had been atrociously mutilated by the Montenegrins
after the battle of Grahevo, and who were on their way home,
near Korfu, startled all of Europe in stark horror.

Thirty-five years ago, yet another report was taken notice of
everywhere. At that time, 1913, after the war in the Balkans,
the Carnegie Endowment for International Peace sent a mixed

* See section III B.

1218

commission for the investigation of war atrocities to the Balkans.
The report of the commission shows through a glance at merely
the table of contents such words as, “Extermination * * *, The
Massacre of Donate * * *, The Massacre and Conflagration of
Serres.”

On page 79 and the following pages of this report we find pic-
tures of destructions and massacres in Macedonia: Turks, Serbs,
and Greeks had a share in them, partly also Bulgarians. Pages
96 and 98 show Greek propaganda prints. In glaring colors one
of these prints show a Greek Evzone, a soldier of the guards,
who is about to overpower a Bulgarian and bite his face ; the other
print shows an Evzone, who in the middle of a battlefield, while
the battle is raging, is gouging out the eyes of a Bulgarian, with
blood pouring down! The International Carnegie Commission
put on record, among others, the following statements of Greek
soldiers, showing the effect of such advocated cruelty- —

“These soldiers all state that everywhere they burned the

( Bulgarian villages. Two boast of the massacre of prisoners of
war. One remarks that all the girls they met with were vio-
lated. Most the letters dwell on the slaughter of noncom-
batants, including women and children.

“Here we are burning the villages and killing the Bulgarians,
both women and children.

“We picked out their eyes (five Bulgarian prisoners) while
they were still alive.

“The letters relieve us of the task of summing up the evi-
dence. From Kukush to the Bulgarian frontier the Greek
Army devastated the villages, violated the women and slaugh-
tered the noncombatant men.”

( In the cruel destructions of those days the hatred of all against
all found an outlet.

The Serbs have at all times been regarded as cruel and mali-
cious fighters, regardless of what good characteristics they might
otherwise possess. Of their five kings of the last 80 years, three
were murdered.

Miss Durhan describes in her Balkan memoirs events of 1912 —
“From the occupied territory pitiful reports arrived about
the atrocious cruelties committed by the Serbs as well as by
Montenegrins against the Albanian population, and the con-
querors boasted of their brave deeds, instead of trying to with-
hold them. A Serbian officer almost choked with laughter over
his glass of beer, when he related how his people in Ljuma
bayonetted women and children.”

1219

The prosecution’s assertion concerning the extensive evidence
of the defense about the Yugoslav and Greek atrocities, namely
that this evidence does not become any more credible through
constant repetition, can hardly be applied to the afore-mentioned
reports.

The Balkans have been, unlike any other part of Europe, a
source of explosive action, of latent unrest, of partisan fights.
Yugoslavia and Greece threatened to degenerate into complete
chaos when the explosive passion of the population was incited
to fight against the German occupation army. The defendants
as German military commanders had a twofold task in that par-
ticular situation — to protect their troops and to hold the Balkans
— which the prosecution itself has called the Achilles’ heel of the
German front. For 3 years they carried out this task. They,
however, had to use harsh means in order to counter all attempts
at insurrection.

I have only very little to say now concerning the reprisal and
hostage problem. Apart from the demand for ratios, which I
have discussed previously, other rules have been laid in order to
restrict the latitude of those parties which take reprisal measures.
The American Professor, Foulke, calls all of them “merely an
expression of opinion and of little practical value.”

Restrictions for the carrying out of reprisal measures can only
exist in accordance with their nature as coercive means in con-
nection with the principle of military necessity.

Why should it be necessary under conditions prevailing in
Yugoslavia and in Greece to inform the partisans of the names,
addresses, etc., of those persons kept as security hostages, when
the forces of resistance were informed by announcements and
posters concerning the fact that hostages or so-called “reprisal
prisoners” would be used as live pawns?

Paragraph 358d of the American Field Manual merely demands
a statement that security hostages, where and when necessary,
would be used in reprisal. The manual which was available to the
German military commanders for international purposes, the
semi-official commentary by Waltzog [Recht der Landkriegs-
fuehrung], Rules of Land Warfare (1942), gave somewhat more
detailed instructions in this particular.

“The hostages are detained in a sort of security custody.
They guarantee with their lives the lawful conduct of the
opponent. When taking hostages, it has to be announced,
according to unwritten international law (common law), that
hostages were arrested and for what purpose. Above all, the
taking of hostages and the threat to kill them has to reach the

1220

knowledge of those parties, against the lawful conduct of which
the hostages are a guarantee.

“If the very act occurs, for the prevention of which hostages
were taken, and if the opponent continues his conduct in vio-
lation of international law, the hostages may be killed. The
taking of hostages is, therefore, more than an action depriving
a group of people of their liberty. It is, beyond that, a break
with the principle of the respect for the life of the citizen, laid
down in Article 46.”

These demands have been complied with by the orders in ques-
tion. I refer particularly to the order of Field Marshal List,
dated 4 October 1941, which orders the announcement of the
fact, to all persons concerned, that the hostages’ lives are at stake.

At times, a territorial connection between the hostages and
the preceding action was demanded. However, no reasons can be
given for such a demand, not even with Article 50 of the Hague
Rules for Land Warfare — as is being attempted occasionally —
because Article 50 does not refer to reprisal measures. From the
nature of reprisal measures as coercive measures, a general prin-
ciple results, which Professor Bonfils has formulated in the fol-
lowing' way :

“Reprisals have to be such as not to fail to impress those
who are the authors and instigators of the excess in question.”

Territorial connection between hostages and perpetrators might
have played a part in earlier days when acts of resistance and
sabotage against the occupation forces mostly emanated from a
limited circle of persons. However, it was of no importance,
whatsoever, in Yugoslavia and Greece where the resistance activ-
ity emanated from forces which reached beyond all local frontiers.
In such a situation only the spiritual connection between hostages
and perpetrators could be taken into account, such as it becomes
apparent from the membership in or support of the illegal resist-
ance forces, or merely from the fact of a common national basis.

With reference to the authority for the ordering of reprisal
measures, the following should be stated :

There existed a regulation in the German Army to the effect
that only a senior commander was to decide the fate of hostages —
as a rule a division commander. There is, however, no rule in
the laws of war to this effect. This is expressly stated in the
British Military Manual.

The German regulation was valid only for such length of time
as the opponent adhered to it also. Since according to the Ameri-
can “Rules of Land Warfare,” a subordinate commander can order
on his own responsibility proper reprisal measures, in urgent cases

1221

of military necessity, no conclusions can be drawn from the fact
that German troop commanders have supposedly acted in the
same way.

Two further forms of reprisal measures are at issue in this
trial; the use of so-called preventative or security hostages, par-
ticularly for the protection of railway traffic ; and the destruction
of houses and localities as a means of reprisal.

The use of railway hostages was discussed at great length when
the Germans in 1870-1871 in France and the British during the
South African war made use of this means. It is the achieve-
ment of Professor Hyde to have analyzed the principles of the
problem in an objective manner, after Professor Oppenheim had
stated that the use of railway hostages is permissible. The legal-
ity of the measure depends entirely on the status of the persons
against whom they are directed. Professor Spaight states:*

“If, therefore, one confines one’s remarks to a district in
which there is no possibility of damage done to the line having
been effected by the enemy’s raiding parties or in which such
raiding parties could not achieve their purpose without the
inhabitants assistance or connivance * * * I held that no objec-
tion arises under the laws and customs of war to the carrying
of hostages on trains.”

Since in Yugoslavia and Greece — as I have developed — legal
combatants of the enemy did not exist at all after the capitula-
tion and every possibility of legal resistance was eliminated, the
use of security hostages was a measure permissible under inter-
national law. The considerations raised in paragraph 463 of
the British Military Manual against their use, could not be of
any practical significance under the conditions prevailing in Yugo-
slavia and Greece.

Where the destruction of enemy property, houses, and localities
is concerned, a difference will have to be made between measures
which are necessary in connection with military operations and
measures carried out from a reprisal aspect. The laws of war
permit them in both instances.

In general, the laws of war do permit the destruction of enemy
property if warranted by military necessity.

The history of war provides numerous instances in support of
the thesis that viewed under this aspect, in guerrilla fighting and
in the event of insurrections, the systematic destruction of towns
and villages is sanctioned as a legitimate resort calculated to

* Spaight, op. cit. supra, p. 161 >.
1222

deprive the resistance forces of their means of subsistence. Pro-
fessor Oppenheim states: 1

"'But the fact that a general devastation can be lawful must
be admitted. * * * in case of a levy en masse on already occu-
pied territory, when self-preservation obliges a belligerent to
resort to the most severe measures. It is also lawful, when
after the defeat of his main forces and occupation of his terri-
tory, an enemy disperses his remaining forces into small bands
which carry on guerrilla tactics and receive food and informa-
tion, so that there is no hope of ending the war except by gen-
eral devastation which cuts off supplies of every kind from the
guerrilla bands.”

During the Boer War, the British very largely availed them-
selves of such measures. The country was laid waste and wide
as a means of cutting off the supplies of the guerrilla forces. At
the same time the civilian population was interned in “ 'concen-
tration camps' with the result of serious loss of life.”

In this connection Professor Spaight states that Lord Kitchener
carried out this policy of devastation with a systematic thorough-
ness that seemed like barbarity to some, but was amply war-
ranted by the peculiar nature of the war.

The American scholar, Professor Hershey, also thinks that
devastation and destruction, even of a town, are permissible in
the face of a threatened insurrection of its inhabitants, or if
directed against guerrilla forces in order to cut off their supplies.

Destructions are permissible as reprisals against unlawful acts
of the population or against unlawful combatants, nor need a
direct connection with military operations be established in such
cases. When one of Sheridan's officers was murdered in October
1864, General Sheridan had all the houses within a radius of
5 miles burned down. Professor Fenwick states: 2

"The burning of towns and villages has been a common form
of retaliation.”

Professor Cobbet also classes the destruction of localities or
houses as among the permissible reprisals against crimes com-
mitted there or in their proximity.

In the same way, Professor Holland states that such measures
are not uncommon.

Oppenheim-Lauterpacht comments :

"Article 50 does not prevent the burning by w^ay of reprisals
of villages or even towns for a treacherous attack committed
there on enemy soldiers by unknown individuals.”

1 Oppenheim, op. cit. supra, p. 215.

2 Fenwick, op. city, supra, p. 581.

1223

In accordance with the general practice of belligerents and
authoritative opinion on international law, the American “Rules
of Land Warfare” also describe reprisals consisting in the burning
down of houses and villages as permissible measures.

That such measures had also to be resorted to in Yugoslavia
and Greece is only natural, considering the extent of unlawful
partisan activity in these countries and the methods of warfare
practiced by the partisans.

I propose to conclude my legal arguments on the problem of
reprisals by once again pointing out the most significant fact in
this case.

Neither in Yugoslavia nor in Greece were there any longer any
lawful resistance forces after the conclusion of the campaign and
the surrender of the Yugoslav Government and the Yugoslav and
Greek armies, there were only unlawful combatants, war rebels.
The mere fact of organizing these resistance forces and the estab-
lishment of partisan formations constituted war rebellion. This
alone entitled the German commanders to resort to acts of sup-
pression and reprisals independent of any individual crimes com-
mitted by the resistance forces against German troops. The
extent of and danger inherent in, the resistance forces very
largely determined the scale of the reprisal measures. The latter,
though usually provoked by individual acts of resistance, were
naturally directed against the illegal resistance as a whole of
which individual acts were merely tokens.

1. Within the realm of international law, the plea of superior
orders — with respect to war crimes — has always received a dif-
ferent treatment from that accorded to it within the sphere of
domestic criminal law.

2. In accordance with a recognized rule of the customs of war,
the plea of superior orders, at any rate at the time at which the
events at issue in this case occurred, was regarded as a full justi-
fication in relation to war crimes.

Professor Lauterpacht has expressed this as follows :

“It is an interesting gloss on the complexity of the problem
that in the United States the plea of superior orders is, on the
whole, without decisive effect in internal criminal or constitu-
tional law, although it is apparently treated as a full justifica-
tion in relation to war crimes.”

It is certain, moreover, that both the well known comment of
Professor Oppenheim, and that of the American author, Manner —
as well as the provisions of the military manuals of the United
States and Great Britain, in the version which was valid until
1944 — treated the plea of superior orders in its full scope as a

1224

justification, a justification, that is, on all levels of the military
hierarchy and not merely applicable to the common soldier or
enlisted man.

Even Professor Glueck, in his treaties on the ambiguity of the
wording in paragraph 347, United States Manual, “Rules of Land
Warfare,” does not seriously dispute it. Neither was this wide
scope of the plea of superior orders ever impugned in the discus-
sions of the Interallied Commission for the Investigation of War
Crimes at the end of the First World War or in the discussions
on Article 228 of the Treaty of Versailles.

The subsequent amendment of paragraph 347 of the United
States Manual, “Rules of Land Warfare,” and of paragraph 443
of the British Manual, calculated to render possible the punish-
ment of members of the German armed forces who had acted on
orders of their government or their superiors, is a manifest vio-
lation of the universally recognized axiom that no punishment
must be based on ex post facto laws. Besides the restatement of
the provisions in the United States Manual, “Rules of Land
Warfare” and the British Manual, being acts of domestic legis-
lation, could not amend a recognized rule of international law.
In examining the grounds adduced in support of the amendment,
mainly those advanced by Professor Glueck and Professor Lauter-
pacht to whose initiative the new version of the two regulations
is to be attributed, one will find that they are dictated by mere
expediency.

The events in Germany after 1933 showed very clearly where
the casting overboard of fundamental principles of law has got
us to. No legal system can survive such treatment; neither can
international law.

Professor Hyde’s comment proves that, even today, eminent
foreign lawyers, including American jurists, regard the plea of
superior orders as a justification.

Professor Hyde’s reference to reprisal measures, quoted below,
proves that he views the subject with the same realism he has
displayed throughout.*

“In land warfare the opportunity for a commanding officer
to exercise discretion in resorting to retaliation is narrow,
because such procedure is commonly determined by the highest
authorities of the state, and when decided upon, leaves the com-
mander in the field no alternative.”

May it please the Tribunal. I attach decisive importance to
the statements of Charles Cheney Hyde, Professor at Columbia
University, and former advisor to the State Department of the

* Hyde, op. cit. supra, p. 1841.

1225

United States of America, contained in the 1945 Edition of
International Law ; I submit that these statements are of decisive
importance to the case at issue before this Tribunal and, if it
please the Tribunal, I commend them to the special attention of
the Tribunal.*

❖ * * * * * *

May it please the Tribunal. I now come to the final evaluation
of the case.

Through the development of the situation in the Balkans after
the beginning of the Russian campaign, Field Marshal List was
faced with a number of legal questions, scarcely any of which
could be given an unequivocal answer. Here, the sins of the past
became evident, in that no clear and exhaustive legal rules were
created for martial occupation. The League of Nations is just
as responsible for this sin of neglect as was the Hague Peace
Conference before it. It should have been one of the most urgent
tasks of the associations of international law to create clarity in
this important sphere of law, but it was neglected, as were so
many other things. Nothing shows more clearly the incomplete
and defective regulation of this matter than the situation con-
cerning international law which has developed since the end of
the Second World War on the territory of the former German
Reich! Because how would it be possible for each of the occu-
pation powers to administrate its zone on different principles, if
the law of martial occupation were governed by clear, positive
principles?

Events since 1945 have brought home to every intelligent man
in the world the truth of the fact that scarcely one single sphere
of international law is so defective as this one. Those men from
the great western nations with a sense of responsibility have
drawn therefrom the only possible conclusion, namely that to
remedy this condition an occupation statute must be created. It
is in the nature of things for the corresponding conclusions also
to be drawn from the case in question, and for it to be recognized
that Field Marshal List, as all the other German commanders
assigned to a German occupied country was faced with a sphere
of law full of deficiencies and obscurities.

If in Your Honors' view Field Marshal List surpassed the
measure of that which, in retrospect with exact knowledge of
the circumstances on both sides, could be designated as justified

* The argument dealing with specific developments in the Balkans, particularly as they
applied to the defendant List, have been omitted. See mimeographed transcript, pp. 9812-9870.

1226

and tolerable, then you must allow that on the basis of the state
of affairs and considering the vagueness of the legal position,
Field Marshal List could feel himself justified in ordering the
measures he did.

The Tribunal cannot pass over these inherent facts in view of
the basic principles governing the field of criminal law for all
civilized nations for centuries.

Reasons of fairness and justice demand that Field Marshal List
be treated in this respect exactly as were, for instance, those
Allied commanders who gave the orders to attack Dresden and
Hiroshima. Both attacks were operations started when the Allies
had already clearly won the war, and the officers participating
in both operations could have no doubt whatsoever that they
would bring a terrible death to tens, nay, hundreds of thousands
of innocent civilians. But in spite of this, these orders were
given — and carried out!

May it please the Tribunal. I do not believe there is one man
in the world today with powers of judgment and a love of truth
who woivld dare to think that the large scale attacks on Dresden
and Hiroshima with their hundreds of thousands of dead can be
objectively justified. If, in spite of this, the question has not
yet been brought up about the criminal responsibility of the Allied
commanders concerned, then obviously this is only because they
were credited with having acted in good faith, and it is assumed
they considered that such an action was militarily necessary.
But the right conceded to the Allied commanders in such cases,
must certainly be granted Field Marshal List in the cases charged
against him which involved far fewer losses.

May it please the Tribunal. I must deal with one further point.
If the Tribunal passes sentence in cases such as that of Field
Marshal List, then Your Honors will create a juridical precedent
which may have incalculable consequences. Because in the future
no commanders will ever dare to issue an order with any bearing
on international law without first obtaining a legal opinion on it.
In legally complicated and doubtful cases he will probably never
struggle through to a decision. Your Honors would thereby hit
the core and the striking power of Your Honors' own army. In
practice this means that in the future the course of military
events would be determined not by soldiers , but by lawyers!

May it please the Tribunal. The consequences of this would be
that an enemy with no scruples concerning international law
would be given colossal opportunities, and he will not hesitate to
make every possible use of them.*

* Defense arguments concerning a number of questions have not been reproduced in the
materials of this case. Most of these general questions were likewise raised in the “High Com-
mand Case IX.” Section G pp. 374—475, this volume.)

893964—51 80

1227

X. FINAL STATEMENT OF DEFENDANT LIST TO
THE TRIBUNAL ON BEHALF OF ALL
DEFENDANTS'

Presiding Judge Carter: We will hear Field Marshal List at
this time. I think it would be proper that you approach the
microphone in the center of the room, Field Marshal, if you
care to.

I also might say that if Field Marshal List is to be the only
representative of the defendants who speaks that we will not hold
him to any 10-minute period of time. 1 2

You may proceed.

Defendant List : Your Honors, may it please the Tribunal. In
my capacity as field marshal and as senior of the generals active
in the Southeast indicted before this Tribunal, I render the fol-
lowing declaration on behalf of these generals and myself.

In the opening session on 8 July 1947, we answered your ques-
tion as to whether we pleaded guilty with a definite “no.” We
repeat this “no” today after the termination of this trial which
lasted for 7 months. We are not guilty. We did not want this
war, nor are we responsible for starting the fights in the Balkans
and in their ensuing effects both were forced on us.

We acted in defense and for the protection of the soldiers
entrusted to us, for the protection of the whole German fighting
front. We did not serve the Party. We did our duty as soldiers
for our fatherland, for Germany, as we had done for decades.

And we were compelled to do our duty even during a battle
which bore all the marks of a band warfare, in a combat which
every soldier, and above all the German soldier, detests.

If harsh measures entailed, and were bound to entail, it is the
guilt of those who caused and sponsored this fight. The fault
rests with those who waged this battle from the very beginning,
cunningly and cruelly in the Balkan manner. We had only one
aim, to pacify the country.

We never thought of terrorization, decimation, or even exter-
mination. Such a plan has never existed. We absolutely refute
any such unfounded allegation. In this gigantic struggle which
affected and shook the whole world, during which the incidents
on the Balkan front formed but a small part, we did nothing
except what we considered militarily expedient and justified.

1 Final statement is recorded in mimeographed transcript, 9 February 1948, pp. 10415-10418.

2 In speaking of the order of presentation of the closing statements by the prosecution and
defense counsel, the Tribunal stated that following the closing arguments “the defendants may
address the court, and will be given 10 minutes each if they care to make use of the time."
(Tr. p. 10355.)

1228

We acted under the harshness of the conditions which can only
be judged rightly on the spot and in consideration of the con-
ditions prevailing then and there.

We therefore maintain: we are not criminals; we refute any
such accusation most emphatically, just as emphatically as we
refute the insults raised by the prosecution during this trial,
insults against our nation, against our profession, against us per-
sonally, and against the soldiers entrusted to our care.

I am fully convinced that the American Army, as well as the
American people, in whose name the charges have beeen made,
do not approve of such procedure. Justice further demands that
we be credited the same bona fide faith as those commanders of
the Allied forces are, whose military measures caused the heaviest
losses of innocent people, the greatest misery and irreparably
destroyed irreplacable cultural monuments belonging to the whole
of mankind.

To arrive at a just appreciation it is furthermore imperative,
to take due consideration of the inherent circumstance, under
which we were compelled to serve. We were pledged by our
oath and duty of obedience. We were living under the coercion
of a dictatorship which grew ever more and more demonic and
chaotic; a dictatorship where nevertheless strong tendencies and
countertendencies were predominant, wherein, however the indi-
vidual had but little freedom of action; a dictatorship uncon-
ceivable by any outsider, least so by a free citizen of a free democ-
racy. These conditions, as a whole, cannot be grasped without
an insight into the background of all that happened in these days.
Against us stood more or less the same powers who have estab-
lished today in the Balkans a regime of terror, and plan to do
the same in Europe, powers who keep the world in tension, today
opposed by the whole Western Hemisphere. May a kind fate
spare the nation which now holds trial on us from having to fight
a battle as we were forced to fight.

Calmly we await the verdict of the Tribunal.

If sentences should be passed, we will bear them as soldiers
for the former German armed forces, as generals for our brave
and gallant soldiers, as Germans for our nation.

Presiding Judge Carter: Do I understand that this is the
only defendant who cares to address the Tribunal? This being
true, this portion of the trial has come to an end.

The Tribunal will stand adjourned until the further call of the
Tribunal. We ask that both the prosecution and the defense counsel
keep in touch with the Tribunal so that they will be available when
the Tribunal is ready to meet and render its decision.

The Tribunal will recess until that time.

The Marshal: Court will recess until further notice.

1229

XI. JUDGMENT

A. Opinion and Judgment of Military Tribunal V

In the matter of the United States of America against Wilhelm List, et al.,

sitting at Nuernberg, Germany, on 19 February 1948, Justice Wennerstrum,

presiding.

Presiding Judge Wennerstrum: Judge Carter will read the
first portion of the opinion.

Judge Carter: In this case, the United States of America
prosecutes each of the defendants on one or more of four counts
of an indictment charging that each and all of said defendants
unlawfully, willfully, and knowingly committed war crimes and
crimes against humanity as such crimes are defined in Article II
of the Control Council Law No. 10. They are charged with being
principals in and accessories to the murder of thousands of per-
sons from the civilian population of Greece, Yugoslavia, Norway,
and Albania between September 1939 and May 1945 by the use
of troops of the German armed forces under the command of and
acting pursuant to orders issued, distributed, and executed by
the defendants at the bar. It is further charged that these defend-
ants participated in a deliberate scheme of terrorism and intimi-
dation, wholly unwarranted and unjustified by military necessity,
by the murder, ill-treatment and deportation to slave labor of
prisoners of war and members of the civilian populations in
territories occupied by the German armed forces; by plundering
and pillaging public and private property and wantonly destroy-
ing cities, towns, and villages for which there was no military
necessity. Upon these charges, each of the defendants except the
defendant Boehme has been formally arraigned and a plea of not
guilty accepted.

The indictment alleges that the defendants committed the acts
charged while occupying the positions hereafter shown during
the periods of time indicated —

The defendant Wilhelm List was a Generalfeldmarschall [Field
Marshal] (General of the Army) of the German armed forces,
serving as commander in chief, 12th Army, from April 1941 to
October 1941 ; Armed Forces Commander Southeast from June
1941 to October 1941 ; and as commander in chief, Army Group A,
from July 1942 to September 1942.

The defendant Maximilian von Weichs was a Generalfeld-
marschall [Field Marshal] (General of the Army) of the German
armed forces, serving as commander in chief, 2d Army, from
April 1941 to July 1942; commander in chief, Army Group B,

1230

from July 1942 to February 1943; and commander in chief, Army
Group F, and Supreme Commander Southeast from August 1943
to March 1945.

The defendant Lothar Rendulic was a Generaloberst (General)
in the German armed forces, serving as commander in chief,
2d Panzer Army, from August 1943 to June 1944; commander
in chief, 20th Mountain Army, from July 1944 to January 1945;
Armed Forces Commander North from December 1944 to Janu-
ary 1945 ; commander in chief, Army Group North, from Janu-
ary 1945 to March 1945 ; commander in chief, Army Group Cour-
land, from March 1945 to April 1945; and commander in chief,
Army Group South, from April 1945 to May 1945.

The defendant Walter Kuntze was a General der Pioniere
(Lieutenant General, Engineers) in the German armed forces,
serving as acting commander in chief, 12th Army, from October
1941 to 'August 1942, and Deputy Armed Forces Commander
Southeast during the same period.

The defendant Hermann Foertsch was a General der Infanterie
(Lieutenant General, Infantry) in the German armed forces,
serving as chief of staff, 12th Army, from May 1941 to August
1942 ; chief of staff, Army Group E, from August 1942 to August
1943; and chief of staff, Army Group F, from August 1943 to
March 1944.

The defendant Franz Boehme was a General der Gebirgstrup-
pen (Lieutenant General, Mountain Troops) in the German armed
forces, serving as commander, XVIII Mountain Army Corps, from
April 1941 to December 1941 ; Plenipotentiary Commanding Gen-
eral in Serbia from September 1941 to December 1941 ; and com-
mander in chief, 2d Panzer Army, from June 1944 to July 1944.

The defendant Helmuth Felmy was a General der Flieger (Lieu-
tenant General, Air Force) in the German armed forces, serving
as commander, Southern Greece, from June 1941 to August 1942 ;
and commander, LXVIII Army Corps, from June 1943 to Octo-
ber 1944.

The defendant Hubert Lanz was a General der Gebirgstruppen
(Lieutenant General, Mountain Troops) in the German armed
forces, serving as commander, 1st Mountain Division, from Octo-
ber 1940 to January 1943; and commander, XXII Mountain Army
Corps, from August 1943 to October 1944.

The defendant Ernst Dehner was a General der Infanterie
(Lieutenant General, Infantry) in the German armed forces,
serving as commander, LXIX Army Reserve Corps, from August
1943 to March 1944.

The defendant Ernst von Leyser was a General der Infanterie
(Lieutenant General, Infantry) in the German armed forces,

1231

serving as commander, XV Mountain Army Corps, from No-
vember 1943 to July 1944; and commander, XXI Mountain Army
Corps, from July 1944 to April 1945.

The defendant Wilhelm Speidel was a General der Flieger
(Lieutenant General, Air Force) in the German armed forces,
serving as commander, Southern Greece, from October 1942 to
September 1943; and Military Commander Greece from Sep-
tember 1943 to June 1944.

The defendant Kurt von Geitner was a Generalmajor (Briga-
dier General) in the German armed forces, serving as chief of
staff to the commanding general in Serbia from July 1942 to
August 1943; and chief of staff to the Military Commander of
Serbia and Military Commander Southeast from August 1943 to
October 1944.

It is alleged in the indictment that the acts charged were
violative of Control Council Law No. 10, duly enacted by the
Allied Control Council on 20 December 1945. The portions of the
law applicable to this case provide as follows [Article II] :

***

“(b) War Crimes. Atrocities or offenses against persons or
property constituting violations of the laws or customs of war,
including but not limited to, murder, ill-treatment, or deporta-
tion to slave labour or for any other purpose, of civilian popu-
lation from occupied territory, murder or ill-treatment of prison-
ers of war or persons on the seas, killing of hostages, plunder of
public or private property, wanton destruction of cities, towns
or villages, or devastation not justified by military necessity.

“(c) Crimes against humanity. Atrocities and offenses,
including but not limited to murder, extermination, enslave-
ment, deportation, imprisonment, torture, rape, or other in-
humane acts committed against any civilian population, or
persecutions on political, racial or religious grounds whether
or not in violation of the domestic laws of the country where
perpetrated.

*******

“2. Any person without regard to nationality or the capacity
in which he acted, is deemed to have committed a crime as
defined in paragraph 1 of this Article, if he was (a) a principal
or ( b ) was an accessory to the commission of any such crime
or ordered or abetted the same or ( c ) took a consenting part
therein or ( d ) was connected with plans or enterprises involv-
ing its commission***.

*******

1232

“4. (b) The fact that any person acted pursuant to the order
of his government or of a superior does not free him from
responsibility for a crime, but may be considered in miti-
gation.”

Pursuant to the provisions of Control Council Law No. 10, the
pertinent parts of which are herein set out, the United States of
America filed its indictment charging the defendants in four
counts with war crimes and crimes against humanity in accord-
ance with the definitions thereof contained. Reduced to a mini-
mum of words, these four counts charge —

1. That defendants were principals or accessories to the mur-
der of hundreds of thousands of persons from the civilian popu-
lations of Greece, Yugoslavia, and Albania by troops of the Ger-
man armed forces; that attacks by lawfully constituted enemy
military forces, and attacks by unknown persons, against German
troops and installations, were followed by executions of large
numbers of the civilian population by hanging or shooting without
benefit of investigation or trial ; that thousands of noncombatants,
arbitrarily designated as “partisans,” “Communists,” “Commu-
nist suspects,” “bandit suspects” were terrorized, tortured, and
murdered in retaliation for such attacks by lawfully constituted
enemy military forces and attacks by unknown persons ; and that
defendants issued, distributed, and executed orders for the execu-
tion of 100 “hostages” in retaliation for each German soldier killed
and 50 “hostages” in retaliation for each German soldier wounded.

2. That defendants were principals or accessories to the plun-
dering and looting of public and private property, the wanton
destruction of cities, towns, and villages, frequently together
with the murder of the inhabitants thereof, and the commission
of other acts of devastation not warranted by military necessity
in the occupied territories of Greece, Yugoslavia, Albania, and
Norway by troops of the German armed forces acting at the
direction and order of these defendants; that defendants ordered
troops under their command to burn, level, and destroy entire
villages and towns and thereby making thousands of peaceful
noncombatants homeless and destitute; thereby causing untold
suffering, misery, and death to large numbers of innocent civilians
without any recognized military necessity for so doing.

3. That defendants were principals or accessories to the draft-
ing, distribution, and execution of illegal orders to the troops
of the German armed forces which commanded that enemy
troops be refused quarters and be denied the status and rights
of prisoners of war and surrendered members of enemy forces
be summarily executed ; that the defendants illegally ordered that

1233

regular members of the national armies of Greece, Yugoslavia,
and Italy be designated as “partisans,” “rebels,” “Communists,”
and “bandits,” and that relatives of members of such national
armies be held responsible for such members' acts of warfare,
resulting in the murder and ill-treatment of thousands of sol-
diers, prisoners of war, and their noncombatant relatives.

4. That defendants were principals or accessories to the mur-
der, torture, and systematic terrorization, imprisonment in con-
centration camps, forced labor on military installations, and
deportation to slave labor of the civilian populations of Greece,
Yugoslavia, and Albania by troops of the German armed forces
acting pursuant to the orders of the defendants ; that large num-
bers of citizens — democrats, Nationalists, Jews, and gypsies —
were seized, thrown into concentration camps, beaten, tortured,
ill-treated, and murdered while other citizens were forcibly con-
scripted for labor in the Reich and occupied territories.

The acts charged in each of the four counts are alleged to have
been committed willfully, knowingly, and unlawfully and consti-
tute violations of international conventions, the Hague Regula-
tions, 1907, the laws and customs of war, the general principles
of criminal law as derived from the criminal laws of all civilized
nations, the internal penal laws of the countries in which such
crimes were committed, and were declared, recognized, and
defined as crimes by Article II of Control Council Law No. 10
adopted by the representatives of the United States of America,
Great Britain, the Republic of France, and the Soviet Union.

The defendant Franz Boehme committed suicide prior to the
arraignment of the defendants, and the Tribunal has ordered his
name stricken from the list of defendants contained in the indict-
ment. The defendant Maximilian von Weichs became ill during
the course of the trial and it having been conclusively ascertained
that he is physically unfit and unable to appear in Court before
the conclusion of the trial, his motion that the proceedings be
suspended as to him was sustained. This holding is without
prejudice to a future trial of this defendant on the charges herein
made against him if and when his physical condition permits.

Before venturing into a discussion of specific issues, it seems
advisable to briefly state the general nature of international law
and the sources from which its principles can be ascertained. No
attempt will be made here to give an all inclusive definition of
international law, in fact, there is justification for the assertion
that it ought not to be circumscribed by strict definition in order
that it may have ample room for growth. Any system of law that
is obviously subject to growth by the crystalization of generally
prevailing custom and practice into law under the impact of

1234

common acceptance or consent must not be confined within the
limits of formal pronouncement or complete unanimity. For our
purposes it is sufficient to say that international law consists of
the principles which control or govern relations between nations
and their nationals. It is much more important to consider the
sources from which these principles may be determined.

The sources of international law which are usually enumerated
are (1) customs and practices accepted by civilized nations gen-
erally, (2) treaties, conventions, and other forms of interstate
agreements, (3) the decisions of international tribunals, (4) the
decisions of national tribunals dealing with international ques-
tions, (5) the opinions of qualified text writers, and (6) the
diplomatic papers. These sources provide a frame upon which
a system ( of international law can be built but they cannot be
deemed a complete legal system in themselves. Any system of
jurisprudence, if it is to be effective, must be given an oppor-
tunity to grow and expand to meet changed conditions. The codi-
fication of principles is a helpful means of simplification, but it
must not be treated as adding rigidity where resiliency is essen-
tial. To place the principles of international law in a formalistic
strait-jacket would ultimately destroy any effectiveness that it has
acquired.

The tendency has been to apply the term “customs and practices
accepted by civilized nations generally,” as it is used in inter-
national law, to the laws of war only. But the principle has no
such restricted meaning. It applies as well to fundamental prin-
ciples of justice which have been accepted and adopted by civi-
lized nations generally. In determining whether such a funda-
mental rule of justice is entitled to be declared a principle of
international law, an examination of the municipal laws of states
in the family of nations will reveal the answer. If it is found
to have been accepted generally as a fundamental rule of justice
by most nations in their municipal law, its declaration as a rule
of international law would seem to be fully justified. There is
convincing evidence that this not only is, but has been the rule.
The rules applied in criminal trials regarding burden of proof,
presumption of innocence, and the right of a defendant to appear
personally to defend himself are derived from this source. Can
it be doubted that such a source of international law would be
applied to an insane defendant? Obviously he would not be sub-
jected to trial during his incompetency. Clearly, such a holding
would be based upon a fundamental principle of criminal law
accepted by nations generally. If the rights of nations and the
rights of individuals who become involved in international re-
lations are to be respected and preserved, fundamental rules of

1235

justice and right which have become commonly accepted by
nations must be applied. But the yardstick to be used must in
all cases be a finding that the principle involved is a fundamental
rule of justice which has been adopted or accepted by nations
generally as such.

The defendants invoke the defensive plea that the acts charged
as crimes were carried out pursuant to orders of superior officers
whom they were obliged to obey. This brings into operation the
rule just announced. The rule that superior order is not a
defense to a criminal act is a rule of fundamental criminal jus-
tice that has been adopted by civilized nations extensively. It is
not disputed that the municipal law of civilized nations generally
sustained the principle at the time the alleged criminal acts were
committed. This being true, it properly may be declared as an
applicable rule of international law.

It cannot be questioned that acts done in time of war under
the military authority of an enemy cannot involve any criminal
liability on the part of officers or soldiers if the acts are not pro-
hibited by the conventional or customary rules of war. Implicit
obedience to orders of superior officers is almost indispensable to
every military system. But this implies obedience to lawful
orders only. If the act done pursuant to a superior's orders be
murder, the production of the order will not make it any less so.
It may mitigate but it cannot justify the crime. We are of the
view, however, that if the illegality of the order was not known
to the inferior, and he could not reasonably have been expected
to know of its illegality, no wrongful intent necessary to the
commission of a crime exists and the interior will be protected.
But the general rule is that members of the armed forces are
bound to obey only the lawful orders of their commanding officers
and they cannot escape criminal liability by obeying a command
which violates international law and outrages fundamental con-
cepts of justice. In the German War Trials (1921), the German
Supreme Court of Leipzig in The Llandovery Castle case said :

“Patzig’s order does not free the accused from guilt. It is
true that, according to paragraph 47 of the Military Penal
Code, if the execution of an order in the ordinary course of duty
involves such a violation of the law as is punishable, the superior
officer issuing such an order is alone responsible. According
to No. 2, however, the subordinate obeying such an order is
liable to punishment, if it was known to him that the order
of the superior involved the infringement of civil or military
law."

It is true that the foregoing rule compels a commander to

1236

make a choice between possible punishment by his lawless gov-
ernment for the disobedience of the illegal order of his superior
officer, or that of lawful punishment for the crime under the law
of nations. To choose the former in the hope that victory will
cleanse the act of its criminal characteristics manifests only
weakness of character and adds nothing to the defense.

We concede the serious consequences of the choice especially
by an officer in the army of a dictator. But the rule becomes one
of necessity, for otherwise the opposing army would in many cases
have no protection at all against criminal excesses ordered by
superiors.

The defense relies heavily upon the writings of Professor L.
Oppenheim to sustain their position. It is true that he advocated
this principle throughout his writings. As a co-author of the
British “Manual of Military Law,” he incorporated the principle
there. It seems also to have found its way into the United States
“Rules of Land Warfare” (1940). We think Professor Oppen-
heim espoused a decidedly minority view. It is based upon the
following rationale : “The law cannot require an individual to be
punished for an act which he was compelled by law to commit.”
The statement completely overlooks the fact that an illegal order
is in no sense of the word a valid law which one is obliged to obey.
The fact that the British and American Armies may have adopted
it for the regulations of its own armies as a matter of policy does
not have the effect of enthroning it as a rule of international
law. We point out that army regulations are not a competent
source of international law. They are neither legislative nor
judicial pronouncements. They are not competent for any pur-
pose in determining whether a fundamental principle of justice
has been accepted by civilized nations generally. It is possible,
however, that such regulations, as they bear upon a question of
custom and practice in the conduct of war, might have eviden-
tiary value, particularly if the applicable portions had been put
into general practice. It will be observed that the determination,
whether a custom or practice exists, is a question of fact. Whether
a fundamental principle of justice has been accepted, is a ques-
tion of judicial or legislative declaration. In determining the for-
mer, military regulations may play an important role but in the
latter they do not constitute an authoritative precedent.

Those who hold to the view that superior order is a complete
defense to an international law crime, base it largely on a con-
flict in the articles of war promulgated by several leading nations.
While we are of the opinion that army regulations are not a
competent source of international law, where a fundamental rule
of justice is concerned, we submit that the conflict in any event

1237

does not sustain the position claimed for it. If, for example,
one be charged with an act recognized as criminal under appli-
cable principles of international law and pleads superior orders as
a defense thereto, the duty devolves upon the court to examine
the sources of international law to determine the merits of such
a plea. If the court finds that the army regulations of some
members of the family of nations provide that superior order
is a complete defense and that the army regulations of other
nations express a contrary view, the court would be obliged to
hold, assuming for the sake of argument only that such regula-
tions constitute a competent source of international law, that
general acceptation or consent was lacking among the family of
nations. In as much as a substantial conflict exists among the
nations whether superior order is a defense to a criminal charge,
it could only result in a further finding that the basis does not
exist for declaring superior order to be a defense to an interna-
tional law crime. But, as we have already stated, army regula-
tions are not a competent source of international law when a
fundamental rule of justice is concerned. This leaves the way
clear for the court to affirmatively declare that superior order
is not a defense to an international law crime if it finds that the
principle involved is a fundamental rule of justice and for that
reason has found general acceptance.

International law has never approved the defensive plea of
superior order as a mandatory bar to the prosecution of war
criminals. This defensive plea is not available to the defendants
in the present case, although, if the circumstances warrant, it
may be considered in mitigation of punishment under the express
provisions of Control Council Law No. 10.

It is urged that Control Council Law No. 10 is an ex post facto
act and retroactive in nature as to the crime charged in the
indictment. The act was adopted on 20 December 1945, a date
subsequent to the dates of the acts charged to be crimes. It is
a fundamental principle of criminal jurisprudence that one may
not be charged with crime for the doing of an act which was not
a crime at the time of its commission. We think it could be said
with justification that Article 23h of the Hague Regulations of
1907 operates as a bar to retroactive action in criminal matters.
In any event, we are of the opinion that a victorious nation may
not lawfully enact legislation defining a new crime and make
it effective as to acts previously occurring which were not at the
time unlawful. It therefore becomes the duty of a tribunal trying
a case charging a crime under the provisions of Control Council
Law No. 10 to determine if the acts charged were crimes at the

1238

time of their commission and that Control Council Law No. 10 is
in fact declaratory of then existing international law.

This very question was passed upon by the International Mili-
tary Tribunal in the case of the United States vs. Hermann Wil-
helm Goering in its judgment entered on 1 October 1946.* Simi-
lar provisions appearing in the Charter creating the International
Military Tribunal and defining the crimes over which it had
jurisdiction were held to be devoid of retroactive features in the
following language:

“The Charter is not an arbitrary exercise of power on the
part of the victorious nations, but in view of the Tribunal, as
will be shown, it is the expression of international law existing
at the time of its creation; and to that extent is itself a con-
tribution to international law.”

i

We adopt this conclusion. Any doubts in our mind concerning
the rule thus announced go to its application rather than to the
correctness of its statement. The crimes defined in Control Coun-
cil Law No. 10 which we have quoted herein were crimes under
pre-existing rules of international law, some by conventional law
such as that exemplified by the Hague Regulations of 1907 clearly
make the war crimes herein quoted crimes under the proceedings
of that convention. In any event, the practices and usages of
war which gradually ripened into recognized customs with which
belligerents were bound to comply recognized the crimes specified
herein as crimes subject to punishment. It is not essential that
a crime be specifically defined and charged in accordance with a
particular ordinance, statute, or treaty if it is made a crime by
international convention, recognized customs and usages of war,
or the general principles of criminal justice common to civilized
nations generally. If the acts charged were in fact crimes under
international law when committed, they cannot be said to be ex
post facto acts or retroactive pronouncements.

The crimes specified in the London Charter and defined in Con-
trol Council Law No. 10 which have heretofore been set forth and
with which these defendants are charged merely restate the rules
declared by the Hague Regulations of 1907 in Articles 43, 46,
47, 50 and 23h of the regulations annexed thereto which provide
[Annex to Hague Convention No. IV] —

Article U3. “The authority of the legitimate power having
in fact passed into the hands of the occupant, the latter shall
take all the measures in his power to restore, and ensure, as far
as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country.”

* Trial of the Major War Criminals, op. cit. supra, judgment of the IMT, vol. I, p. 171 ff.

1239

Article 1*6. “Family honour and rights, the lives of persons,
and private property, as well as religious convictions and prac-
tice, must be respected. Private property cannot be con-
fiscated.”

Article U7. “Pillage is formally forbidden.”

Article 50. “No general penalty, pecuniary or otherwise,
shall be inflicted upon the population on account of the acts of
individuals for which they cannot be regarded as jointly and
severally responsible.”

Article 23. “In addition to the prohibitions provided by spe-
cial Conventions, it is especially forbidden — .

* * * * * * *

“h. To declare abolished, suspended, or inadmissible in a
court of law the rights and actions of the nationals of the
hostile party.”

We conclude that pre-existing international law has declared
the acts constituting the crimes herein charged and included in
Control Council Law No. 10 to be unlawful, both under the con-
ventional law and the practices and usages of land warfare that
had ripened into recognized customs which belligerents were
bound to obey. Anything in excess of existing international law
therein contained is a utilization of power and not of law. It is
true, of course, that courts authorized to hear such cases were
not established nor the penalties to be imposed for violations set
forth. But this is not fatal to their validity. The acts prohibited
are without deterrent effect unless they are punishable as crimes.
This subject was dealt with in the International Military Trial
in the following language*:

“But it is argued that the Pact does not expressly enact that
such wars are crimes, or set up courts to try those who make
such wars. To that extent the same is true with regard to the
laws of war contained in the Hague Convention. The Hague
Convention of 1907 prohibited resort to certain methods of
waging war. These included the inhumane treatment of pris-
oners, the employment of poisoned weapons, the improper use
of flags of truce, and similar matters. Many of these pro-
hibitions had been enforced long before the date of the Conven-
tion ; but since 1907 they have certainly been crimes punish-
able as offenses against the laws of war; yet the Hague Con-
vention nowhere designates such practices as criminal, nor is
any sentence prescribed, nor any mention made of a court to
try and punish offenders. For many years past, however, mili-
tary tribunals have tried and punished individuals guilty of

* Ibid., pp. 220-221.

1240

violating the rules of land warfare laid down by this Conven-
tion. The law of war is to be found not only in treaties, but
in the customs and practices of states which gradually obtained
universal recognition, and from the general principles of jus-
tice applied by jurists and practiced by military courts. This
law is not static, but by continual adaptation follows the needs
of a changing world. Indeed, in many cases treaties do no
more than express and define for more accurate reference the
principles of law already existing.”

It is true, of course, that customary international law is not
static. It must be elastic enough to meet the new conditions that
natural progress brings to the world. It might be argued that
this requires a certain amount of retroactive application of new
rules and that by conceding the existence of a customary inter-
national law, one thereby concedes the legality of retroactive pro-
nouncements. To a limited extent the argument is sound, but
when it comes in conflict with a rule of fundamental right and
justice, the latter must prevail. The rule that one may not be
charged with crime for committing an act which was not a crime
at the time of its commission is such a right. The fact that it
might be found in a constitution or bill of rights does not detract
from its status as a fundamental principle of justice. It cannot
properly be changed by retroactive action to the prejudice of one
charged with a violation of the laws of war.

An international crime is such an act universally recognized as
criminal, which is considered a grave matter of international
concern and for some valid reason cannot be left within the exclu-
sive jurisdiction of the state that would have control over it under
ordinary circumstances. The inherent nature of a war crime is
ordinarily itself sufficient justification for jurisdiction to attach
in the courts of the belligerent into whose hands the alleged
criminal has fallen.

Some war crimes, such as spying, are not common law crimes
at all ; they being pure war crimes punishable as such during the
war and, in this particular case, only if the offender is captured
before he rejoins his army. But some other crimes, such as mass
murder, are punishable during and after the war. But such
crimes are also war crimes because they were committed under
the authority or orders of the belligerent who, in ordering or
permitting them, violated the rules of warfare. Such crimes are
punishable by the country where the crime was committed or by
the belligerent into whose hands the criminals have fallen, the
jurisdiction being concurrent. There are many reasons why this
must be so, not the least of which is that war is usually followed
by political repercussions and upheavals which at times place

1241

persons in power who are not, for one reason or another, inclined
to punish the offenders. The captor belligerent is not required
to surrender the alleged war criminal when such surrender is
equivalent to a passport to freedom. The only adequate remedy
is the concurrent jurisdictional principle to which we have here-
tofore adverted. The captor belligerent may therefore surrender
the alleged criminal to the state where the offense was committed,
or, on the other hand, it may retain the alleged criminal for trial
under its own legal processes.

It cannot be doubted that the occupying powers have the right
to set up special courts to try those charged with the commission
of war crimes as they are defined by international law. Ex Parte
Quirin, 317 U.S. 1 , In Re Yamashita, 327 U.S. 1 . Nor can it be
said that the crimes herein charged are invalid as retroactive
pronouncements, they being nothing more than restatements of
the conventional and customary law of nations governing the
rules of land warfare, restricted by charter provisions limiting the
jurisdiction of the Tribunal by designating the class of cases it is
authorized to hear. The elements of an ex post facto act or a
retroactive pronouncement are not present insofar as the crimes
charged in the instant case are concerned.

The argument that the defendants cannot be tried before this
Tribunal is without force. It is urged they can only be properly
tried in accordance with the international principles laid down
in Article 63 of the Geneva Convention of 1929 relative to the
treatment of prisoners of war. We submit that the provision
applies only to crimes and offenses committed while occupying
the status of a prisoner of war, and confers no jurisdiction over
a violation of international law committed prior to the time of
becoming such.

In the recent case of In Re Yamashita , 327 U.S . 7, 66 Sup . Ct.
3U8 , the Supreme Court of the United States arrived at this con-
clusion in the following language : “But we think examination of
article 63 in its setting in the Convention plainly shows that it
refers to sentence ‘pronounced against a prisoner of war’ for an
offense committed while a prisoner of war, and not for a violation
of the law of war committed while a combatant.”

The defendants at bar are charged only with crimes alleged
to have been committed as combatants before they became pris-
oners of war. We hold, therefore, that no rights under Article 63
of the Geneva Convention of 1929 can accrue to them in the
present case. The jurisdictional question raised is without merit.

It is essential to a proper understanding of the issues involved
in the present case, that the status of Yugoslavia, Greece, and
Norway be determined during the periods that the alleged crim-

1242

inal acts of these defendants were committed. The question of
criminality in many cases may well hinge on whether an invasion
was in progress or an occupation accomplished. Whether an in-
vasion has developed into an occupation is a question of fact. The
term invasion implies a military operation while an occupation
indicates the exercise of governmental authority to the exclusion
of the established government. This presupposes the destruction
of organized resistance and the establishment of an administra-
tion to preserve law and order. To the extent that the occupant’s
control is maintained and that of the civil government eliminated,
the area will be said to be occupied.

The evidence shows that the invasion of Yugoslavia was com-
menced on 6 April 1941. Nine days later the Yugoslav Gov-
ernment capitulated and on 16 April 1941, large scale military
operations had come to an end. The powers of government passed
into the hands of the German armed forces and Yugoslavia be-
came an occupied country. The invasion of Yugoslavia followed
through into Greece. On 22 April 1941, the Greek armed forces
in the north were forced to surrender and on 28 April 1941,
Athens fell to the invader. On and after that date Greece became
an occupied country within the meaning of existing international
law.

The evidence shows that the population remained peaceful
during the spring of 1941. In the early summer following, a
resistance movement began to manifest itself. It increased pro-
gressively in intensity until it assumed the appearance of a mili-
tary campaign. Partisan bands, composed of members of the
population, roamed the territory doing much damage to trans-
portation and communication lines. German soldiers were the
victims of surprise attacks by an enemy which they could not
engage in open combat. After a surprise attack, the bands would
hastily retreat or conceal their arms and mingle with the popula-
tion with the appearance of being harmless members thereof.
Ambushing of German troops was a common practice. Captured
German soldiers were often tortured and killed. The terrain
was favorable to this type of warfare and the inhabitants most
adept in carrying it on.

It is clear that the German armed forces were able to maintain
control of Greece and Yugoslavia until they evacuated them in
the fall of 1944. While it is true that the partisans were able
to control sections of these countries at various times, it is estab-
lished that the Germans could at any time they desired assume
physical control of any part of the country. The control of the
resistance forces was temporary only and not such as would
deprive the German armed forces of its status of an occupant.

893964—51 81

1243

These findings are consistent with Article 42 of the Hague Reg-
ulations of 1907 which provide — ‘Territory is considered occu-
pied when it is actually placed under the authority of the hostile
army. The occupation extends only to the territory where such
authority has been established and can be exercised.”

It is the contention of the defendants that after the respective
capitulations a lawful belligerency never did exist in Yugoslavia
or Greece during the period here involved. The prosecution con-
tends just as emphatically that it did. The evidence on the
subject is fragmentary and consists primarily of admission con-
tained in the reports, orders, and diaries of the German Army
units involved. There is convincing evidence in the record that
certain band units in both Yugoslavia and Greece complied with
the requirements of international law entitling them to the status
of a lawful belligerent. Rut the greater portion of the partisan
bands failed to comply with the rules of war entitling them to
be accorded the rights of a lawful belligerent. The evidence fails
to establish beyond a reasonable doubt that the incidents involved
in the present case concern partisan troops having the status of
lawful belligerents.

The evidence shows that the bands were sometimes designated
as units common to military organization. They, however, had
no common uniform. They generally wore civilian clothes
although parts of German, Italian, and Serbian uniforms were
used to the extent they could be obtained. The Soviet star was
generally worn as insignia. The evidence will not sustain a
finding that it was such that it could be seen at a distance. Neither
did they carry their arms openly except when it was to their
advantage to do so. There is some evidence that various groups
of the resistance forces were commanded by a centralized com-
mand, such as the partisans of Marshal Tito, the Chetniks of
Draja Mihailovic and the Edes of General Zervas. It is evident
also that a few partisan bands met the requirements of lawful
belligerency. The bands, however, with which we are dealing in
this case were not shown by satisfactory evidence to have met
the requirements. This means, of course, that captured members
of these unlawful groups were not entitled to be treated as pris-
oners of war. No crime can be properly charged against the
defendants for the killing of such captured members of the resist-
ance forces, they being francs-tireurs.

The status of an occupant of the territory of the enemy having
been achieved, international law places the responsibility upon
the commanding general of preserving order, punishing crime,
and protecting lives and property within the occupied territory.
His power in accomplishing these ends is as great as his responsi-

1244

bility. But he is definitely limited by recognized rules of inter-
national law, particularly the Hague Regulations of 1907. Article
43 thereof imposes a duty upon the occupant to respect the laws
in force in the country. Article 46 protects family honor and
rights, the lives of individuals and their private property as well
as their religious convictions and the right of public worship.
Article 47 prohibits pillage. Article 50 prohibits collective pen-
alties. Article 51 regulates the appropriation of properties
belonging to the state or private individuals which may be useful
in military operations. There are other restrictive provisions not
necessary to mention here. It is the alleged violation of these
rights of the inhabitants thus protected that furnish the basis
of the case against the defendants.

The evidepce is clear that during the period of occupation in
Yugoslavia and Greece, guerrilla warfare was carried on against
the occupying power. Guerrilla warfare is said to exist where,
after the capitulation of the main part of the armed forces, the
surrender of the government and the occupation of its territory,
the remnant of the defeated army or the inhabitants themselves
continue hostilities by harassing the enemy with unorganized
forces ordinarily not strong enough to meet the enemy in pitched
battle. They are placed much in the same position as a spy. By
the law of war it is lawful to use spies. Nevertheless, a spy
when captured, may be shot because the belligerent has the right,
by means of an effective deterrent punishment, to defend against
the grave dangers of enemy spying. The principle therein in-
volved applies to guerrillas who are not lawful belligerents. Just
as the spy may act lawfully for his country and at the same time
be a war criminal to the enemy, so guerrillas may render great
service to their country and, in the event of success, become heroes
even, still they remain war criminals in the eyes of the enemy
and may be treated as such. In no other way can an army guard
and protect itself from the gadfly tactics of such armed resist-
ance. And, on the other hand, members of such resistance forces
must accept the increased risks involved in this mode of fighting.
Such forces are technically not lawful belligerents and are not
entitled to protection as prisoners of war when captured. The
rule is based on the theory that the forces of two states are no
longer in the field and that a contention between organized armed
forces no longer exists. This implies that a resistance not sup-
ported by an organized government is criminal and deprives
participants of belligerent status, an implication not justified
since the adoption of chapter I, Article I of the Hague Regula-
tions of 1907. In determining the guilt or innocence of an army
commander when charged with a failure or refusal to accord a

1245

belligerent status to captured members of the resistance forces,
the situation as it appeared to him must be given the first con-
sideration. Such commander will not be permitted to ignore
obvious facts in arriving at a conclusion. One trained in military
science will ordinarily have no difficulty in arriving at a correct
decision and, if he willfully refrains from so doing for any reason,
he will be held criminally responsible for wrongs committed
against those entitled to the rights of a belligerent. Where room
exists for an honest error in judgment, such army commander
is entitled to the benefit thereof by virtue of the presumption of
his innocence.

We think the rule is established that a civilian who aids, abets,
or participates in the fighting is liable to punishment as a war
criminal under the laws of war. Fighting is legitimate only for
the combatant personnel of a country. It is only this group that
is entitled to treatment as prisoners of war and incurs no liability
beyond detention after capture or surrender.

It is contended by the prosecution that the so-called guerrillas
were in fact irregular troops. A preliminary discussion of the
subject is essential to a proper determination of the applicable
law. Members of a militia or a volunteer corps, even though
they are not a part of the regular army, are lawful combatants if
(a) they are commanded by a responsible person, (b) if they pos-
sess some distinctive insignia which can be observed at a dis-
tance, (c) if they carry arms openly, and ( d ) if they observe the
laws and customs of war. (See chapter I, Article I, Hague Regu-
lations of 1907.) In considering the evidence adduced on this
subject, the foregoing rules will be applied. The question whether
a captured fighter is a guerrilla or an irregular is sometimes a
close one that can be determined only by a careful evaluation of
the evidence before the Court.

The question of the right of the population of an invaded and
occupied country to resist has been the subject of many conven-
tional debates. (Brussels Conference of 1874; Hague Peace
Conference of 1899.) A review of the positions assumed by the
various nations can serve no useful purpose here for the simple
reason that a compromise (Hague Regulations, 1907) was
reached wdiich has remained the controlling authority in the fixing
of a legal belligerency. If the requirements of the Hague Regu-
lation, 1907, are met, a lawful belligerency exists; if they are not
met, it is an unlawful one.

The prosecution advances the contention that since Germany’s
wars against Yugoslavia and Greece were aggressive wars, the
German occupation troops were there unlawfully and gained no
rights whatever as an occupant. It is further asserted as a cor-

1246

ollary, that the duties owed by the populace to an occupying
power which are normally imposed under the rules of interna-
tional law, never became effective in the present case because
of the criminal character of the invasion and occupation.

For the purposes of this discussion, we accept the statement as
true that the wars against Yugoslavia and Greece were in direct
violation of the Kellogg-Briand Pact and were therefore criminal
in character. But it does not follow that every act by the Ger-
man occupation forces against person or property is a crime or
that any and every act undertaken by the population of the occu-
pied country against the German occupation forces thereby be-
came legitimate defense. The prosecution attempts to simplify
the issue by posing it in the following words :

'The sole issue here is whether German forces can with
impunity violate international law by initiating and waging
wars of aggression and at the same time demand meticulous
observance by the victims of these crimes of duties and obli-
gations owed only to a lawful occupant.”

At the outset, we desire to point out that international law
makes no distinction between a lawful and an unlawful occupant
in dealing with the respective duties of occupant and population
in occupied territory. There is no reciprocal connection between
the manner of the military occupation of territory and the rights
and duties of the occupant and population to each other after the
relationship has in fact been established. Whether the invasion
was lawful or criminal is not an important factor in the con-
sideration of this subject.

It must not be overlooked that international law is prohibitive
law. Where the nations have affirmatively acted, as in the case
of the Hague Regulations, 1907, it prohibits conduct contradictory
thereto. Its specific provisions control over general theories, how-
ever reasonable they may seem. We concur in the views expressed
in the following text on the subject:* “Whatever may be the cause
of a war that has broken out, and whether or no the cause be a
so-called just cause, the same rules of international law are valid
as to what must not be done, may be done, and must be done by
the belligerents themselves in making war against each other, and
as between the belligerents and neutral states. This is so, even
if the declaration of war is ipso facto a violation of international
law, as when a belligerent declares war upon a neutral state for
refusing passage to its troops, or when a state goes to war in
patent violation of its obligations under the Covenant of the

2 » ,

* Oppenheim, op, cit, supra, p. 79.

1247

League or of the General Treaty for the Renunciation of War.*
To say that, because such a declaration of war is ipso facto a
violation of neutrality and international law, it is 'inoperative in
law and without any judicial significance' is erroneous. The
rules of international law apply to war from ivhatever cause it
originates ”

The major issues involved in the present case gravitate around
the claimed right of the German armed forces to take hostages
from the innocent civilian population to guarantee the peaceful
conduct of the whole of the civilian population and its claimed
right to execute hostages, members of the civil population, and
captured members of the resistance forces in reprisal for armed
attacks by resistance forces, acts of sabotage and injuries com-
mitted by unknown persons.

We wholly exclude from the following discussion of the subject
of hostages the right of one nation to take them, to compel the
armed forces of another nation to comply with the rules of war
or the right to execute them if the enemy ignores the warning.
We limit our discussion to the right to take hostages from the
innocent civilian population of occupied territory as a guaranty
against attacks by unlawful resistance forces, acts of sabotage
and the unlawful acts of unknown persons, and the further right
to execute them if the unilateral guaranty is violated.

Neither the Hague Convention of 1907, nor any other conven-
tional law for that matter, says a word about hostages in the sense
that we are to use the term in the following discussion. But cer-
tain rules of customary law and certain inferences legitimately
to be drawn from existing conventional law lay down the rules
applicable to the subject of hostages. In former times prominent
persons were accepted as hostages as a means of insuring observ-
ance of treaties, armistices, and other agreements, the perform-
ance of which depended on good faith. This practice is now
obsolete. Hostages under the alleged modern practice of nations
are taken (a) to protect individuals held by the enemy, ( b ) to
force the payment of requisitions, contributions, and the like, and
(c) to insure against unlawful acts by enemy forces or people.
We are concerned here only with the last provision. That hos-
tages may be taken for this purpose cannot be denied.

The question of hostages is closely integrated with that of
reprisals. A reprisal is a response to an enemy's violation of the
laws of war which would otherwise be a violation on one's own
side. It is a fundamental rule that a reprisal may not exceed
the degree of the criminal act it is designed to correct. Where

an excess is knowingly indulged, it in turn is criminal and may

* Ibid.

1248

be punished. Where innocent individuals are seized and pun-
ished for a violation of the laws of war which has already occurred,
no question of hostages is involved. It is nothing more than the
infliction of a reprisal. Throughout the evidence in the present
case, we find the term hostage applied where a reprisal only was
involved.

Under the ancient practice of taking hostages they were held
responsible for the good faith of the persons who delivered them,
even at the price of their lives. This barbarous practice was
wholly abandoned by a more enlightened civilization. The idea
that an innocent person may be killed for the criminal act of
another is abhorrent to every natural law. We condemn the in-
justice of any such rule as a barbarous relic of ancient times.
But it is not our province to write international law as we would
have it ; we must apply it as we find it.

For the purposes of this opinion the term “hostages” will be
considered as those persons of the civilian population who are
taken into custody for the purpose of guaranteeing with their lives
the future good conduct of the population of the community from
which they were taken. The term “reprisal prisoners” will be
considered as those individuals who are taken from the civilian
population to be killed in retaliation for offenses committed by
unknown persons within the occupied area.

An examination of the available evidence on the subject con-
vinces us that hostages may be taken in order to guarantee the
peaceful conduct of the populations of occupied territories and,
when certain conditions exist and the necessary preliminaries have
been taken, they may, as a last resort, be shot. The taking of
hostages is based fundamentally on a theory of collective re-
sponsibility. The effect of an occupation is to confer upon the
invading force the right of control for the period of the occupation
within the limitations and prohibitions of international law. The
inhabitants owe a duty to carry on their ordinary peaceful pur-
suits and to refrain from all injurious acts toward the troops
or in respect to their military operations. The occupant may
properly insist upon compliance with regulations necessary to
the security of the occupying forces and for the maintenance of
law and order. In the accomplishment of this objective, the
occupant may only, as a last resort, take and execute hostages.

Hostages may not be taken or executed as a matter of military
expediency. The occupant is required to use every available
method to secure order and tranquility before resort may be had
to the taking and execution of hostages. Regulations of all kinds
must be imposed to secure peace and tranquility before the shoot-
ing of hostages may be indulged. These regulations may include

1249

one or more of the following measures: (1) the registration of
the inhabitants, (2) the possession of passes or identification cer-
tificates, (3) the establishment of restricted areas, (4) limita-
tions of movement, (5) the adoption of curfew regulations, (6)
the prohibition of assembly, (7) the detention of suspected per-
sons, (8) restrictions on communication, (9) the imposition of
restrictions on food supplies, (10) the evacuation of troublesome
areas, (11) the levying of monetary contributions, (12) com-
pulsory labor to repair damage from sabotage, (13) the destruc-
tion of property in proximity to the place of the crime, and any
other regulation not prohibited by international law that would in
all likelihood contribute to the desired result.

If attacks upon troops and military installations occur regard-
less of the foregoing precautionary measures and the perpetrators
cannot be apprehended, hostages may be taken from the popula-
tion to deter similar acts in the future provided it can be shown
that the population generally is a party to the offense, either
actively or passively. Nationality or geographic proximity may
under certain circumstances afford a basis for hostage selection,
depending upon the circumstances of the situation. This arbi-
trary basis of selection may be deplored but it cannot be con-
demned as a violation of international law, but there must be
some connection between the population from whom the hostages
are taken and the crime committed. If the act was committed
by isolated persons or bands from distant localities without the
knowledge or approval of the population or public authorities, and
which, therefore, neither the authorities nor the population could
have prevented, the basis for the taking of hostages, or the shoot-
ing of hostages already taken, does not exist.

It is essential to a lawful taking of hostages under customary
law that proclamation be made, giving the names and addresses
of hostages taken, notifying the population that upon the recur-
rence of stated acts of war treason the hostages will be shot.
The number of hostages shot must not exceed in severity the
offenses the shooting is designed to deter. Unless the foregoing
requirements are met, the shooting of hostages is in contravention
of international law and is a war crime in itself. Whether such
fundamental requirements have been met is a question determina-
ble by court martial proceedings. A military commander may not
arbitrarily determine such facts. An order of a military com-
mander for the killing of hostages must be based upon the finding
of a competent court martial that necessary conditions exist and
all preliminary steps have been taken which are essential to the
issuance of a valid order. The taking of the lives of innocent
persons arrested as hostages is a very serious step. The right

1250

to kill hostages may be lawfully exercised only after a meticulous
compliance with the foregoing safeguards against vindictive or
whimsical orders of military commanders.

We are also concerned with the subject of reprisals and the
detention of members of the civilian population for the purpose
of using them as the victims of subsequent reprisal measures. The
most common reason for holding them is for the general purpose
of securing the good behavior and obedience of the civil popula-
tion in occupied territory. The taking of reprisals against the
civilian population by killing members thereof in retaliation for
hostile acts against the armed forces or military operations of
the occupant* seems to have been originated by Germany in
modern times. It has been invoked by Germany in the Franco-
Prussian War, World War I, and in World War II. No other
nation has resorted to the killing of members of the civilian
population to secure peace and order insofar as our investigation
has revealed. The evidence offered in this case on that point
will be considered later in the opinion. While American, British,
and French manuals for armies in the field seem to permit the
taking of such reprisals as a last resort, the provisions do not
appear to have been given effect. The American manual provides
in part — 1

“The offending forces or populations generally may lawfully
be subjected to appropriate reprisals. Hostages taken and held
for the declared purpose of insuring against unlawful acts by
the enemy forces or people may be punished or put to death if
the unlawful acts are nevertheless committed.”

The British field manual provides in part — 2

“Although collective punishment of the population is forbid-
den for the acts of individuals for which it cannot be regarded
as collectively responsible, it may be necessary to resort to re-
prisals against a locality or community, for same act committed
by its inhabitants, or members who cannot be identified.”

In two major wars within the last 30 years, Germany has
made extensive use of the practice of killing innocent members
of the population as a deterrent to attacks upon its troops and
acts of sabotage against installations essential to its military
operations. The right to so do has been recognized by many
nations including the United States, Great Britain, France, and
the Soviet Union. There has been complete failure on the part
of the nations of the world to limit or mitigate the practice by
conventional rule. This requires us to apply customary law.

1 Rules of Land Warfare, U. S. Army, Field Manual 27-10, op. cit. supra, par 358d, p. 89-90.

2 British Manual of Military Law, par. 468.

1251

That international agreement is badly needed in this field is self-
evident.

International law is prohibitive law and no conventional pro-
hibitions have been invoked to outlaw this barbarous practice.
The extent to which the practice has been employed by the Ger-
mans exceeds the most elementary notions of humanity and
justice. They invoke the plea of military necessity, a term which
they confuse with convenience and strategical interests. Where
legality and expediency have coincided, no fault can be found
insofar as international law is concerned. But where legality of
action is absent, the shooting of innocent members of the popula-
tion as a measure of reprisal is not only criminal but it has the
effect of destroying the basic relationship between the occupant
and the population. Such a condition can progressively degen-
erate into a reign of terror. Unlawful reprisals may bring on
counter reprisals and create an endless cycle productive of chaos
and crime. To prevent a distortion of the right into a barbarous
method of repression, international law provides a protective
mantle against the abuse of the right.

Generally, it can be said that the taking of reprisal prisoners,
as well as the taking of hostages, for the purpose of controlling
the population involves a previous proclamation that if a certain
type of act is committed, a certain number of reprisal prisoners
will be shot if the perpetrators cannot be found. If the perpe-
trators are apprehended, there is no right to kill either hostages
or reprisal prisoners.

As in the case of the taking of hostages, reprisal prisoners may
not be shot unless it can be shown that the population as a whole
is a party to the offense, either actively or passively. In other
words, members of the population of one community cannot prop-
erly be shot in reprisal for an act against the occupation forces
committed at some other place. To permit such a practice would
conflict with the basic theory that sustains the practice in that
there would be no deterrent effect upon the community where
the offense was committed. Neither may the shooting of innocent
members of the population as a reprisal measure exceed in
severity the unlawful acts it is designed to correct. Excessive
reprisals are in themselves criminal and guilt attaches to the
persons responsible for their commission.

It is a fundamental rule of justice that the lives of persons
may not be arbitrarily taken. A fair trial before a judicial body
affords the surest protection against arbitrary, vindictive, or
whimsical application of the right to shoot human beings in
reprisal. It is a rule of international law, based on these funda-
mental concepts of justice and the rights of individuals, that the

1252

lives of persons may not be taken in reprisal in the absence of a
judicial finding that the necessary conditions exist and the essen-
tial steps have been taken to give validity to such action. The
possibility is great, of course, that such judicial proceedings may
become ritualistic and superficial when conducted in wartime but
it appears to be the best available safeguard against cruelty and
injustice. Judicial responsibility ordinarily restrains impetuous
action and permits principles of justice and right to assert their
humanitarian qualities. We have no hesitancy in holding that
the killing of members of the population in reprisal without
judicial sanction is itself unlawful. The only exception to this
rule is where it appears that the necessity for the reprisal requires
immediate reprisal action to accomplish the desired purpose and
which would be otherwise defeated by the invocation of judicial
inquiry. Unless the necessity for immediate action is affirmatively
shown, the execution of hostages or reprisal prisoners without a
judicial hearing is unlawful. The judicial proceeding not only
affords a measure of protection to innocent members of the popu-
lation, but it offers, if fairly and impartially conducted, a meas-
ure of protection to the military commander, charged with making
the final decision.

It cannot be denied that the shooting of hostages or reprisal
prisoners may under certain circumstances be justified as a last
resort in procuring peace and tranquility in occupied territory
and has the effect of strengthening the position of a law abiding
occupant. The fact that the practice has been tortured beyond
recognition by illegal and inhuman application cannot justify
its prohibition by judicial fiat.

Military necessity has been invoked by the defendants as justi-
fying the killing of innocent members of the population and the
destruction of villages and towns in the occupied territory. Mili-
tary necessity permits a belligerent, subject to the laws of war, to
apply any amount and kind of force to compel the complete sub-
mission of the enemy with the least possible expenditure of time,
life, and money. In general, it sanctions measures by an occupant
necessary to protect the safety of his forces and to facilitate the
success of his operations. It permits the destruction of life of
armed enemies and other persons whose destruction is incidentally
unavoidable by the armed conflicts of the war; it allows the
capturing of armed enemies and others of peculiar danger, but it
does not permit the killing of innocent inhabitants for purposes
of revenge or the satisfaction of a lust to kill. The destruction
of property to be lawful must be imperatively demanded by the
necessities of war. Destruction as an end in itself is a violation
of international law. There must be some reasonable connection

1253

between the destruction of property and the overcoming of the
enemy forces. It is lawful to destroy railways, lines of com-
munication, or any other property that might be utilized by the
enemy. Private homes and churches even may be destroyed if
necessary for military operations. It does not admit the wanton
devastation of a district or the willful infliction of suffering upon
its inhabitants for the sake of suffering alone.

The issues in the present case raise grave questions of inter-
national law. Military men the world over debate both the law
and the policy involved in the prosecution for war crimes of the
high ranking commanders of defeated armies. This is partially
brought about by the possibility of future wars and the further
possibility that the victors of the present may be the vanquished
of the future. This only serves to impress the Tribunal with
the absolute necessity of affording the defendants a fair and
impartial trial under the rules of international law as they were
at the time the alleged offenses were committed. Unless this be
done, the hand of injustice may fall upon those who so vindictively
contend for more far reaching pronouncements, sustained by
precedents which we would hereby establish.

Strict discipline is necessary in the organization of an army,
and it becomes hard for many to believe that a violation of the
orders of a superior may bring about criminal liability. Love of
country and adherence to duty intervene to palliate unlawful
conduct. The passage of time and the thankfulness for a return
to peaceful pursuits tend to lessen the demand that war criminals
answer for their crimes. In addition thereto, there is a general
feeling that excesses occur in all armies, no matter how well
disciplined, and that military trials are held to convict the war
criminals of the vanquished while those of the victor are cleansed
by victory. Unless civilization is to give way to barbarism in
the conduct of war, crime must be punished. If international
law as it applies to a given case is hopelessly inadequate, such
inadequacy should be pointed out. If customary international
law has become outmoded, it should be so stated. If conventional
international law sets forth an unjust rule, its enforcement will
secure its correction. If all war criminals are not brought to
the bar of justice under present procedures, such procedures
should be made more inclusive and more effective. If the laws
of war are to have any beneficent effect, they must be enforced.

The evidence in this case recites a record of killing and de-
struction seldom exceeded in modern history. Thousands of inno-
cent inhabitants lost their lives by means of a firing squad or
hangman's noose, people who had the same inherent desire to live
as do these defendants. Wherever the German armed forces were

1254

found, there also were the SS (Die Schutzstaffeln der National-
sozialistischen Deutschen Arbeiterpartei) , the SD (Der Sicher-
heitsdienst des Reichsfuehrer SS), the Gestapo (Die Geheime
Staatspolizei), the SA (Die Sturmabteilungen der Nationalsozial-
istischen Deutschen Arbeiterpartei), the administrators of Goer-
ing’s Four Year Plan, and the Einsatzstab Rosenberg, all partici-
pating in the administration of the occupied territories in varying
degrees. Mass shootings of the innocent population, deporta-
tions for slave labor, and the indiscriminate destruction of public
and private property, not only in Yugoslavia and Greece but in
many other countries as well, lend credit to the assertion that
terrorism and intimidation was the accepted solution to any and
all opposition to the German will. It is clear, also, that this had
become a general practice and a major weapon of warfare by the
German Wehrmacht. The German attitude seems to be reflected
in the introduction to the German War Book, as translated by
J. H. Morgan [John Murray, London, 1915] on pages 53-55
wherein it is stated:

“If therefore, in the following work the expression The law
of war’ is used, it must be understood that by it is meant not
a lex scripta introduced by international agreements, but only
a reciprocity of ’ mutual agreement; a limitation of arbitrary
behaviour, which custom and conventionality, human friendli-
ness and a calculating egotism have erected, but for the observ-
ance of which there exists no express sanction, but only The
fear of reprisals’ decides. * * * Moreover the officer is a
child of his time. He is subject to the intellectual tendencies
which influence his own nation; the more educated he is the
more will this be the case. The danger that, in this way, he
will arrive at false views about the essential character of war
must not be lost sight of. The danger can only be met by a
thorough study of war itself. By steeping himself in military
history an officer will be able to guard himself against excessive
humanitarian notions, it will teach him that certain severities
are indispensable to war, nay more, that the only true humanity
very often lies in a ruthless application of them. It will also
teach him how the rules of belligerent intercourse in war have
developed, how in the course of time they have solidified into
general usages of war, and finally it will teach him whether the
governing usages of war are justified or not, whether they are
to be modified or whether they are to be observed.”

It is apparent from the evidence of these defendants that they
considered military necessity, a matter to be determined by them,
a complete justification of their acts. We do not concur in the

1255

view that the rules of warfare are anything less than they purport
tc be. Military necessity or expediency do not justify a violation
of positive rules. International law is prohibitive law. Articles
46, 47, and 50 of the Hague Regulations of 1907 make no such
exceptions to its enforcement. The rights of the innocent popu-
lation therein set forth must be respected even if military neces-
sity or expediency decree otherwise. We have hereinbefore
pointed out that it is the duty of the commanding general in
occupied territory to maintain peace and order, punish crime, and
protect lives and property. This duty extends not only to the
inhabitants of the occupied territory but to his own troops and
auxiliaries as well. The commanding general of occupied terri-
tory, having executive authority as well as military command, will
not be heard to say that a unit taking unlawful orders from some-
one other than himself was responsible for the crime and that he
is thereby absolved from responsibility. It is here claimed, for
example, that certain SS units under the direct command of
Heinrich Himmler committed certain of the atrocities herein
charged without the knowledge, consent, or approval of these
defendants. But this cannot be a defense for the commanding-
general of occupied territory. The duty and responsibility for
maintaining peace and order, and the prevention of crime rests
upon the commanding general. He cannot ignore obvious facts
and plead ignorance as a defense. The fact is that the reports
of subordinate units almost without exception advised these de-
fendants of the policy of terrorism and intimidation being car-
ried out by units in the field. They requisitioned food supplies
in excess of their local need and caused it to be shipped to
Germany in direct violation of the laws of war. Innocent people
were lodged in collection and concentration camps where they
were mistreated to the everlasting shame of the German nation.
Innocent inhabitants were forcibly taken to Germany and other
points for use as slave labor. Jews, gypsies, and other racial
groups were the victims of systematized murder or deportation
for slave labor for no other reason than their race or religion,
which is in violation of the express conventional rules of the
Hague Regulations of 1907. The German theory that fear of
reprisal is the only deterrent in the enforcement of the laws of
war cannot be accepted here. That reprisals may be indulged
to compel an enemy nation to comply with the rules of war must
be conceded.

It is not, however, an exclusive remedy. If it were, the persons
responsible would seldom, if ever, be brought to account. The
only punishment would fall upon the reprisal victims who are
usually innocent of wrongdoing. The prohibitions of the Hague

1256

Regulations of 1907 contemplate no such system of retribution.
Those responsible for such crimes by ordering or authorizing
their commission, or by a failure to take effective steps to prevent
their execution or recurrence, must be held to account if inter-
national law is to be anything more than an ethical code, barren
of any practical coercive deterrent.

That the acts charged as crimes in the indictment occurred is
amply established by the evidence. In fact, it is evident that they
constitute only a portion of the large number of such acts which
took place as a part of a general plan for subduing the countries
of Yugoslavia and Greece. The guilt of the German occupation
forces is not only proved beyond a reasonable doubt but it casts a
pall of shame upon a once highly respected nation and its people:
The defendants themselves recognize this situation when they
decry the policies of Hitler and assert that they continually pro-
tested against orders of superiors issued in conformity with the
plan of terrorism and intimidation.

It is the determination of the connection of the defendants
with the acts charged and the responsibility which attaches to
them therefor, rather than the commission of the acts, that poses
the chief issue to be here decided.

Objection has been made that the documents offered in evi-
dence by the prosecution are not the original instruments but
photostatic copies only. No objection of this character was made
at the time the exhibits were offered and received in evidence. In
view of the fact that this objection was not timely made, it cannot
receive the consideration of the Tribunal.

The record is replete with testimony and exhibits which have
been offered and received in evidence without foundation as to
their authenticity and, in many cases where it is secondary in
character, without proof of the usual conditions precedent to the
admission of such evidence. This is in accordance with the pro-
visions of Article VII, Ordinance No. 7, Military Government,
Germany, which provides —

‘The tribunals shall not be bound by technical rules of evi-
dence. They shall adopt and apply to the greatest possible
extent expeditious and nontechnical procedure, and shall admit
any evidence which they deem to have probative value. With-
out limiting the foregoing general rules, the following shall be
deemed admissible if they appear to the tribunal to contain
information of probative value relating to the charges: affi-
davits, depositions, interrogations, and other statements,
diaries, letters, the records, findings, statements and judgments
of the military tribunals and the reviewing and confirming

1257

authorities of any of the United Nations, and copies of any
document or other secondary evidence of the contents of any
document, if the original is not readily available or cannot be
produced without delay. The tribunal shall afford the opposing
party such opportunity to question the authenticity or pro-
bative value of such evidence as in the opinion of the tribunal
the ends of justice require.”

This Tribunal is of the opinion that this rule applies to the
competency of evidence only, and does not have the effect of
giving weight and credibility to such evidence as a matter of law.
It is still within the province of the Tribunal to test it by the
usual rules of law governing the evaluation of evidence. Any
other interpretation would seriously affect the right of the de-
fendants to a fair and impartial trial. The interpretation thus
given and consistently announced throughout the trial by this
Tribunal is not an idle gesture to be announced as a theory and
ignored in practice; it is a substantive right composing one of
the essential elements of a fair and impartial adjudication.

The trial was conducted in two languages, English and German,
and consumed 117 trial days. The prosecution offered 678 ex-
hibits and the defendants 1,025 that were received in evidence.
The transcript of the evidence taken consists of 9,556 pages.
A careful consideration of this mass of evidence and its subse-
quent reduction into concise conclusions of fact is one of the
major tasks of the Tribunal.

The prosecution has produced oral and documentary evidence
to sustain the charges of the indictment. The documents consist
mostly of orders, reports, and war diaries which were captured
by the Allied armies at the time of the German collapse. Some
of it is fragmentary and consequently not complete. Where ex-
cerpts of such documents were received in evidence, we have
consistently required the production of the whole document when-
ever the defense so demanded. The Tribunal and its administra-
tive officials have made every effort to secure all known and avail-
able evidence. The prosecution has repeatedly assured the Tri-
bunal that all available evidence, whether favorable or otherwise,
has been produced pursuant to the Tribunal’s orders.

The reports offered consist generally of those made or received
by the defendants and unit commanders in their chain of com-
mand. By the general term “order” is meant primarily the
orders, directives, and instructions received by them or sent by
them by virtue of their position. By war diaries is meant the
records of events of the various units which were commanded by
these defendants, such war diaries being kept by the commanding

1258

officer or under his direction. This evidence, together with the
oral testimony of witnesses appearing at the trial provides the
basis of the prosecution’s case.

The defense produced much oral testimony including that of
the defendants themselves. Hundreds of affidavits were received
under the rules of the Tribunal. All affidavits were received
subject to a motion to strike if the affiants were not produced
for cross-exaipination in open court upon demand of the opposite
party made in open court.

In weighing and evaluating this evidence, it was necessary to
ascertain the nature of the chains of command and the general
military structure in the involved territory. The correct sub-
ordination of military units as to time and place was sometimes
important. Orders given and received had to be tested as to
claimed literal or general meanings often made in accordance
with the interest of the claimant. We have been confronted re-
peatedly with contentions that reports and orders sent to the
defendants did not come to their attention. Responsibility for
acts charged as crimes have been denied because of absence from
headquarters at the time of their commission. These absences
generally consisted of visitations to points within the command
area, vacation leaves and leaves induced by illness. It is claimed
also that many of the acts charged . were committed by units not
subordinated to them or by independent units subordinated to
agencies other than the German Wehrmacht. It is contended
generally by these defendants that they signed no orders for the
performance of specific acts which are charged as war crimes,
a fact which is undoubtedly due to their high rank and their
indirect control only of troops in the field.

We desire to point out that the German Wehrmacht was a well
equipped, well trained, and well disciplined army. Its efficiency
was demonstrated on repeated occasions throughout the war.

There is some evidence that the troops in the Southeast were
overage and not as well fitted for duty there as they might
have been. The evidence shows, however, that they were led by
competent commanders who had mail, telegraph, telephone, radio,
and courier service for the handling of communications. Reports
were made daily, sometimes morning and evening. Ten-day and
monthly reports recapitulating past operations and stating future
intentions were regularly made. They not only received their own
information promptly but they appear to have secured that of the
enemy as well. We are convinced that military information was
received by these high ranking officers promptly, a conclusion
prompted by the known efficiency of the German armed forces.

893964—51 82

1259

An army commander will not ordinarily be permitted to deny
knowledge of reports received at his headquarters, they being
sent there for his special benefit. Neither will he ordinarily
be permitted to deny knowledge of happenings within the area
of his command while he is present therein. It would strain the
credulity of the Tribunal to believe that a high ranking military
commander would permit himself to get out of touch with current
happenings in the area of his command during wartime. No
doubt such occurrences result occasionally because of unexpected
contingencies, but they are the unusual. With reference to state-
ments that responsibility is lacking where temporary absence
from headquarters for any cause is shown, the general rule to
be applied is dual in character. As to events occurring in his
absence resulting from orders, directions, or a general prescribed
policy formulated by him, a military commander will be held re-
sponsible in the absence of special circumstances. As to events,
emergent in nature and presenting matters for original decision,
such commander will not ordinarily be held responsible unless he
approved of the action taken when it came to his knowledge.

The matter of subordination of units as a basis of fixing crim-
inal responsibility becomes important in the case of a military
commander having solely a tactical command. But as to the
commanding general of occupied territory who is charged with
maintaining peace and order, punishing crime, and protecting
lives and property, subordination are relatively unimportant. His
responsibility is general and not limited to a control of units
directly under his command. Subordinate commanders in occu-
pied territory are similarly responsible to the extent that execu-
tive authority has been delegated to them.

Much has been said about the participation of these defendants
in a preconceived plan to decimate and destroy the populations
of Yugoslavia and Greece. The evidence will not sustain such a
charge and we so find. The only plan demonstrated by the evi-
dence is one to suppress the bands by the use of severe and harsh
measures. While these measures progressively increased as the
situation became more chaotic, and appeared to have taken a more
or less common course, we cannot say that there is any convincing
evidence that these defendants participated in such measures for
the preconceived purpose of exterminating the population gen-
erally.

Neither will the evidence sustain a finding that these defendants
participated in a preconceived plan to destroy the economy of the
Balkans. Naturally there was a disruption of the economy of
these countries but such only as could be expected by a military
occupation. There were unlawful acts that had the effect of

1260

damaging the economy of Yugoslavia and Greece, possibly the
result of a preconceived plan, but the evidence does not show
the participation of these defendants therein.

There is evidence to the effect that certain reports and entries
in the war diaries do not reflect the truth and were not intended
to do so. The explanation is made that certain orders received
from the High Command were so harsh and severe that resort
was had to subterfuge to appease the insistent demands of su-
periors. It is asserted, for example, that the number of reprisals
taken against the population was increased above the actual
number for this purpose and that the number of killings was
inflated for the same reason. In this connection we desire to
point out that the records of the German Army are mute evidence
of the events and occurrences which they themselves made. State-
ments contained therein which are adverse to the interests of the
defendants approach the status of admission against interest.
If the evidence and circumstances sustain such an assertion of
falsity, we will of course give credence to it, but there are limi-
tations beyond which the most credulous court cannot go.

In determining the guilt or innocence of these defendants,
we shall require proof of a causative, overt act or omission from
which a guilty intent can be inferred before a verdict of guilty
will be pronounced. Unless this be true, a crime could not be
said to have been committed unlawfully, willfully, and knowingly
as charged in the indictment.

In making our findings of fact, we shall give effect to these
general statements except where a contrary application is specifi-
cally pointed out. We shall impose upon the prosecution the
burden of proving its case beyond a reasonable doubt. We shall
also adhere to the rule that the defendants will be presumed
innocent until proven guilty by the required quantum of com-
petent evidence. With these general statements in mind, we
shall turn to a consideration of the charges against the individual
defendants.

A brief historical background is helpful in dealing with issues
here involved. The troubles of the German Wehrmacht in the
Balkans began in October 1940 with the commencement of the
war on Greece by Italy. Until that occurrence, Greece was a
neutral nation and immune to invasion by the Allied powers
without the violation of fundamental concepts of the rights of
neutrals. The attack on Greece by Italy, an ally of Germany,
transformed that country into an active belligerent which wel-
comed the aid of the Allied powers. The failure of the Italian
forces to subjugate Greece opened the way to possible invasion
of continental Europe by Allied forces. To prevent such a con-

1261

tmgency, Germany deemed it necessary to occupy Greece. Ar-
rangements were made for the passage of troops through Bulgaria
for the attack on Greece and a treaty was made with the then
existing government of Yugoslavia which insured nonaction on
its part. A few days after the making of the treaty with Yugo-
slavia, strong opposition developed in that country which resulted
in the overthrow of the government and a disavowal of the treaty.
The Germans, deeming it a military necessity to protect against
the possibility of an attack from the rear and a disruption of
its supply lines, determined to crush Yugoslavia as a part of the
campaign against Greece. Once again international law gave
way to military expediency on the part of the German Wehrmacht
and neutral Yugoslavia was invaded. As we have heretofore
shown, both countries were overrun and the German Wehrmacht
became occupants within the meaning of international law.

The territory was particularly favorable to the guerrilla war-
fare which soon broke out. Local political, religious, and racial
conflicts had provided a training ground for this sort of fighting.
The various conflicting elements of the population, over a period
of time, were gradually welded into a common partisan front.
The guerrilla fighting methods of the partisans and the attempts
of the German armed forces to eliminate them by a campaign
of intimidation provides the basis for the prosecutions here
brought.

A similar situation developed in Greece after the capitulation
of the Greek armies. While it is true that the partisans of
Greece were never able to organize a common front to the extent
it was done in Yugoslavia, the methods of the various partisan
organizations were very much the same. Guerrilla tactics were
employed. German troops were ambushed; transportation and
communication systems sabotaged. The capture of the perpetra-
tors was next to impossible. Again draconic measures of terror-
ism and intimidation were indulged in in an attempt to subjugate
the country. It was with this situation that List, Kuntze, Loehr,
and von Weichs had to deal in their capacities as over-all com-
manders in the southeastern area.

Presiding Judge Wennerstrum: Judge Burke will continue
reading the opinion.

Judge Burke: The defendant Wilhelm List was the fifth rank-
ing field marshal in the German Army. He was a thoroughly
trained and experienced military commander. He was the com-
mander in chief of the 12th Army during the invasion of Yugo-
slavia and Greece, and in addition thereto in June 1941 became the
Armed Forces Commander Southeast, a position he retained until
illness compelled his temporary retirement from active service on

1262

15 October 1941. From July to September 1942, he was returned
to active service as commander in chief of Army Group A, an
army group operating on the Russian front. He stands charged
on all four counts of the indictment.

On 9 June 1941, Hitler appointed the defendant List to be
armed forces commander in the Southeast with headquarters in
Salonika. His commission provided that the Armed Forces Com-
mander Southeast is the supreme representative of the armed
forces in the Balkans and exercises executive authority in the ter-
ritories occupied by German troops. Directly subordinated to
him were the “Commander Serbia,” the “Commander Salonika-
Aegean,” and the “Commander of Southern Greece.” Among
the duties assigned was the safeguarding of the unified defense
of those parts of Serbia and Greece, including the Greek Islands,
which were occupied by German troops, against attacks and
unrest. The defendant Foertseh, who had become chief of staff
of the 12th Army on 10 May 1941, continued on as chief of staff
to the defendant List in his new capacity as Armed Forces Com-
mander Southeast.

The record shows that attacks on German troops and acts of
sabotage against transportation and communication lines pro-
gressively increased throughout the summer of 1941. Even at
this early date, the shooting of innocent members of the popula-
tion was commenced as a means of suppressing resistance. Ex-
cerpts from the war diaries and orders of the participating units
reveal, for example, that on 5 July 1941, 13 Communists and
Jews were killed in reprisal; on 17 July 1941, 16 Communists
were killed in reprisal in Belgrade; on 20 July 1941, 52 Com-
munists, Jews, and members of families of band members were
killed in reprisal for the attack on General Lontschar; on 25 July
1941, 100 Jews were killed in Belgrade because a 16-year-old
Serbian girl threw a bottle of gasoline at a German motor vehicle
at the alleged instigation of a Jew; on 29 July 1941, 122 Com-
munists and Jews were killed in Belgrade in reprisal for acts
of sabotage; and many other orders and reports showing the
shooting of hundreds of the inhabitants in reprisal. On 5 Sep-
tember 1941, the resistance movement had developed to such a
point that the defendant List put out an order on the subject
of its suppression. In this order he said in part (NOKW-084,
Pros. Ex. £2)*:

“In regard to the above the following aspects are to be taken

into consideration :

* * * * * * *

* Document reproduced in section VB,

V 1263

“Ruthless and immediate measures against the insurgents,
against their accomplices and their families (hangings, burn-
ing down of villages involved, seizure of more hostages, depor-
tation of relatives, etc., into concentration camps ).”

On 16 September 1941, Hitler in a personally signed order
(NOKW-1492, Pros . Ex. 49) 1 charged the defendant List with
the task of suppressing the insurgent movement in the southeast.
This resulted in the commissioning of General Franz Boehme
with the handling of military affairs in Serbia and in the transfer
of the entire executive power in Serbia to him. This delegation
of authority was done on the recommendation and request of the
defendant List to whom Boehme remained subordinate.

On 16 September 1941, Field Marshal Keitel, Chief of the
High Command of the Armed Forces, issued a directive pertain-
ing to the suppression of the insurgent movement in occupied
territories. The pertinent parts of this order are (NOKW-258,
Pros. Ex. 53 ) 2 —

“Measures taken up to now to counteract this general Com-
munist insurgent movement have proved themselves to be
inadequate. The Fuehrer now has ordered that severest means
are to be employed in order to break down this movement in
the shortest time possible. Only in this manner, which has
always been applied successfully in the history of the extension
of power of great peoples, can quiet be restored.

“The following directives are to be applied here:

“(a) Each incident of insurrection against the German
Wehrmacht, regardless of individual circumstances, must be
assumed to be of Communist origin.

“(6) In order to stop these intrigues at their inception,
severest measures are to be applied immediately at the first
appearance, in order to demonstrate the authority of the
occupying power, and in order to prevent further progress.
One must keep in mind that a human life frequently counts for
naught in the affected countries and a deterring effect can only
be achieved by unusual severity. In such a case the death
penalty for 50 to 100 Communists must in general be deemed
appropriate as retaliation for the life of a German soldier.
The manner of execution must increase the deterrent effect.
The reverse procedure — to proceed at first with relatively easy
punishment and to be satisfied with the threat of measures of
increased severity as a deterrent — does not correspond with
these principles and is not to be applied.”

i Ibid.

3 Ibid.

1264

This order was received by the defendant List and distributed
to his subordinate units.

On 25 September 1941, General Boehme issued an order to his
subordinate units in part as follows (NOKW-10^8, Pros. Ex. 63) :

“After dissemination, destroy!

“In March of this year, Serbia shamefully broke the friend-
ship treaty wjth Germany, in order to strike in the back the
German units marching against Greece.

“German revenge stormed across the country.

“We must turn to new, greater goals with all our forces at
hand. For Serbia, this was the sign for a new uprising, to
which hundreds of German soldiers have already fallen in
sacrifice. If we do not proceed here with all means and the
greatest ruthlessness, our losses will climb to immeasurable
heights.

“Your mission lies in carrying out reconnaissance of the
country in which German blood flowed in 1914 through the
treachery of the Serbs, men and women.

“You are avengers of these dead. An intimidating example
must be created for the whole of Serbia, which must hit the
whole population most severely.

“Everyone who wishes to rule charitably sins against the
lives of his comrades. He will be called to account without
regard for his person and placed before a court martial.”

On 28 September 1941, Field Marshal Keitel directed the fol-
lowing order to the defendant List {NOKW-^58, Pros. Ex. 69) * 1 :

“Because of the attacks on members of the armed forces
which have taken place lately in the occupied territories, it is
pointed out that it is opportune for the military commanders
to have always at their disposal a number of hostages of the
different political persuasions, i.e., (1) Nationalists, (2) demo-
cratic middle-class, and (3) Communists.

“It is of importance that among these are leading personali-
ties or members of their families. Their names are to be
published.

“In case of an attack, hostages of the group corresponding
to that to which the culprit belongs are to be shot.

“It is requested that commanders be informed in this sense.”
On 4 October 1941, the defendant List directed the following
order to General Bader, the Plenipotentiary Commanding Gen-
eral in Serbia (NOKW-203, Pros. Ex. 70) 2 :

1 Ibid.

1 Ibid.

1265

“The male population of the territories to be mopped up
of bandits, is to be handled according to the following points
of view:

“1. Men who take part in combat are to be judged by court
martial.

“2. Men in the insurgent territories who were not encoun-
tered in battle are to be examined and —

“a. If a former participation in combat can be proved of
them to be judged by court martial.

“b. If they are only suspected of having taken part in com-
bat, of having offered the bandits support of any sort, or of
having acted against the armed forces in any way, to be held
in a special collecting camp. They are to serve as hostages
in the event that bandits appear, or anything against the
armed forces is undertaken in the territory mopped up or in
their home localities, and in such cases they are to be shot.”

On 10 October 1941, General Boehme issued an order to mili-
tary units under his command relative to the crushing of the
insurgent movement, the applicable parts of which are ( NOKW -
557, Pros. Ex. 88)*:

“2. In all garrison towns in Serbia all Communists, male
residents suspicious as such, all Jews, a certain number of
Nationalistic and democratically inclined residents are to be
arrested as hostages, by means of sudden actions. It is to be
explained to these hostages and to the population that the
hostages will be shot in case of attacks on Germans or on ethnic
Germans.

“3. If losses of German soldiers or ethnic Germans occur,
the territorially competent commanders up to the regimental
commanders are to decree the shooting of arrestees according
to the following quotas :

“a. For each killed or murdered German soldier or ethnic
German (man, woman, or child), 100 prisoners or hostages;

“b. For each wounded German soldier or ethnic German,
•50 prisoners or hostages.

“The shootings are to be carried out by the troops.

“If possible, the execution is to be carried out by the part
of the unit suffering the loss.

“In each individual case of losses a statement is to be made
in the daily reports, whether and to what extent the reprisal
measure is carried out or when this will be finished.

“4. In the burying of those shot, care is to be taken that
no Serbian shrines arise. Placing of crosses on the graves,

* Ibid.
1266

decorations, etc., is to be prevented. Burials are, accordingly,
to be carried out best in distant localities.

“5. The Communists captured by the troops in combat ac-
tions are to be hanged or shot as a matter of principle at the
place of crime [Tatort] as a frightening measure.

“6. Localities which have to be taken in combat are to be
burned down, ^is well as farms from which troops were shot
at.”

After the issuance of the foregoing orders, the shooting of
innocent members of the population was stepped up. Acts of
sabotage increased and attacks on German military personnel
continued unabated. The evidence is conclusive that a large
number of reprisals against the population were carried out on
the basis of the 100 to 1 order.* Space will not permit a detailed
account of each of these actions. We shall content ourselves
with a recitation of the facts of one incident that bears similarity
to many others shown by the record.

On 2 October 1941, at a small village near Topola, a troop unit
of the 521st Army Signal Regiment consisting of 2 officers and 45
men was ambushed from the cornfields along the road on which
they were traveling. A few dead and wounded were found at the
scene of the attack. In a small valley nearby, other dead
soldiers were found. A survivor who escaped being killed by
feigning death gave information that these men had been lined
up and killed by the partisans by machine gun fire. The total
casualties consisted of 22 dead, 3 wounded, and 15 or 16 missing.
The incident was reported through regular channels to higher
commanding officers.

On 4 October 1941, General Boehme issued an order of re-
prisal for the killing near Topola which was in part as follows
( NOKW-192 , Pros. Ex. 78) :*

“Twenty-one soldiers were tortured to death in a bestial
manner on the 2d of October in a surprise attack on units
of the signal regiment between Belgrade and Obrenovac. As
reprisal and retaliation, 100 Serbian prisoners are to be shot
at once for each murdered German soldier. The Chief of the
Military Administration is requested to pick out 2,100 inmates
in the concentration camps Sabac and Belgrade (primarily
Jews and Communists) and to fix the place and time as well
as burial place. The detachments for the shooting are to be
formed from the 342d Division (for the Sabac concentration
camp) and from the 449th Corps Signal Battalion (for the
Belgrade concentration camp). * * *”

* Ibid.

1267

On 9 October 1941, General Boehme informed the defendant
List as follows [NOKW-1211, Pros . Ex . 79 ] :

"Execution by shooting of about 2,000 Communists and Jews
in reprisal for 22 murdered of the 2d Battalion of the 521st
Army Signal Communication Regiment in progress/’

Another report distributed to the 12th Army commanded by the
defendant List stated 180 men were executed on 9 October 1941,
and an additional 269 were executed on 11 October 1941. After
the killing of the 449 men, the psychological effect upon the par-
ticipating units was such that a transfer of the mission was made
to another unit.

On 9 October 1941, the Chief of the Security Police and of the
SD reports [ NO-3156, Pros. Ex. 8}] : "In reprisal for the 21 Ger-
man soldiers shot to death near Topola a few days ago 2,100 Jews
and gypsies are being executed. The execution is carried out by
the German armed forces. The task of the Security Police is
merely to make available the required number. Eight hundred
and five Jews and gypsies are taken from the camp in Sabac, the
rest from the Jewish transit camp Belgrade.” On 20 October
1941, the Chief of the Security Police and of the SD in Berlin
reported to the Armed Forces Commander Southeast as follows
[NO-3 UOU, Pros. Ex. 82] : "In reprisal for 21 dead German army
soldiers 2,100 Jews from the Jewish camp were made available for
execution by order of XVIII Corps Headquarters. The Wehrmacht
is carrying out the execution.”

On 21 October 1941, the Chief of the Security Police and the SD
reported to the Armed Forces Commander Southeast in part as
follows [. NO-3U02 , Pros. Ex. 83] :

"After ruthless action by the troops was bound to fail up to
the time of the employment of the Plenipotentiary Commanding
General in Serbia because of the lack of corresponding orders,
Lieutenant General Boehme’s order, according to which 100
Serbs will be executed for every soldier killed and 50 for every
soldier wounded, has established a completely clear-cut line for
action. On the strength of this order, for instance, 2,200 Serbs
and Jews were shot in reply to an attack on a convoy near
Topola, during which 22 members of the Wehrmacht perished,
while in return for the soldiers killed in the fight for Kraljevo
so far 1,736 inhabitants and 19 Communist women from
Kraljevo have been executed.”

The evidence shows that after the capitulation of the armies
of Yugoslavia and Greece both countries were occupied within
the meaning of international law. It shows further that they

1268

remained occupied during the period that List was Armed Forces
Commander Southeast. It is clear from the record also that the
guerrillas participating in the incidents shown by the evidence
during this period were not entitled to be classed as lawful
belligerents within the rules hereinbefore announced. We agree,
therefore, with the contention of the defendant List that the
guerrilla fighters with which he contended were not lawful bel-
ligerents entitling ihem to prisoner of war status upon capture.
We are obliged to hold that such guerrillas were francs-tireurs
who, upon capture, could be subjected to the death penalty. Con-
sequently, no criminal responsibility attaches to the defendant
List because of the execution of captured partisans in Yugo-
slavia and Greece during the time he was Armed Forces Com-
mander Southeast.

We find that the “Commissar Order” of 6 June 1941, (NOKW-
USU, Pros . Ex. IS) requiring the killing of all captured commissars
was not issued, distributed or executed in the occupied terri-
tory under the command of List while he held the position of
Armed Forces Commander Southeast. The charge that such order
was issued, distributed, and executed by him while serving on
the Russian front as commander in chief of Army Group A, is
not established by the record. The evidence fails to show beyond
a reasonable doubt that List was in any way responsible for the
killing of commissars merely because they were such. Conse-
quently, the defendant List is found to be not guilty of any crime
in connection with the Commissar Order.

The defendant List contends that he never signed an order for
the killing of hostages or other inhabitants, or fixed a ratio de-
termining the number of persons to be put to death for each
German soldier killed or wounded. The record sustains this
contention. It will be observed, however, that as a high ranking
commanding general no such act was ordinarily within the scope
of his duties. It discloses, however, that List caused the Keitel
order of 16 September 1941, ( NOKW-258 , Pros . Ex. 53)* con-
taining the 100:1 ratio to be distributed to his subordinate com-
manders. This order provided, among other things, that 100
reprisal prisoners should be shot for each German soldier killed
and 50 killed for each German soldier wounded. It is urged that
the order was worded in such a way that literal compliance was
not required. We do not deem it material whether the order
was mandatory or directory. In either event, it authorized the
killing of hostages and reprisal prisoners to an extent not per-
mitted by international law. An order to take reprisals at an
arbitrarily fixed ratio under any and all circumstances constitutes

* Ibid.

1269

a violation of international law. Such an order appears to have
been made more for purposes of revenge than as a deterrent to
future illegal acts which would vary in degree in each particular
instance. An order, directory or mandatory, which fixes a ratio
for the killing of hostages or reprisal prisoners, or requires the '
killing of hostages or reprisal prisoners for every act committed
against the occupation forces is unlawful. International law
places no such unrestrained and unlimited power in the hands of
the commanding general of occupied territory. The reprisals
taken under the authority of this order were clearly excessive.
The shooting of 100 innocent persons for each German soldier
killed at Topola, for instance, cannot be justified on any theory
by the record. There is no evidence that the population of Topola
were in any manner responsible for the act. In fact, the record
shows that the responsible persons were an armed and officered
band of partisans. There is nothing to infer that the population
of Topola supported or shielded the guilty persons. Neither
does the record show that the population had previously conducted
themselves in such a manner as to have been subjected to previous
reprisal actions. An order to shoot 100 persons for each Ger-
man soldier killed under such circumstances is not only excessive
but wholly unwarranted. We conclude that the reprisal measure
taken for the ambushing and killing of 22 German soldiers at
Topola were excessive and therefore criminal. It is urged that
only 449 persons were actually shot in reprisal for the Topola inci-
dent. The evidence does not conclusively establish the shooting
of more than 449 persons although it indicates the killing of a
much greater number. But the killing of 20 reprisal prisoners
for each German soldier killed was not warranted under the cir-
cumstances shown. Whether the number of innocent persons '
killed was 2,200 or 449, the killing was wholly unjustified and
unlawful.

The reprisal measures taken for the Topola incident were un-
lawful for another reason. The reprisal prisoners killed were
not taken from the community where the attack on the German
soldiers occurred. The record shows that 805 Jews and gypsies
were taken from the collection camp at Sabac and the rest from
the Jewish transit camp at Belgrade to be shot in reprisal for the
Topola incident. There is no evidence of any connection what-
ever, geographical, racial, or otherwise between the persons shot
and the attack at Topola. Nor does the record disclose that
judicial proceedings were held. The order for the killing in
reprisal appears to have been arbitrarily issued and under the
circumstances shown is nothing less than plain murder.

1270

It is further contended that the basic order for the taking of
reprisals was issued by the High Command of the Armed Forces
to whom the defendant List was subordinate and that this has
the effect of relieving him of responsibility. Such a defense is
not available to hint. An officer is duty bound to carry out only
the lawful orders that he receives. One who distributes, issues,
or carries out a criminal order becomes a criminal if he knew or
should have known of its criminal character. Certainly, a field
marshal of the German Army with more than 40 years of experi-
ence as a professional soldier knew or ought to have known of its
criminal nature. That he did know of it is evidenced by the fact
that he opposed its issuance and, according to his own statement,
did what he could to ameliorate its effect.

The defendant List also asserts that he had no knowledge of
many of the unlawful killings of innocent inhabitants which
took place because he was absent from his headquarters where
the reports came in and that he gained no knowledge of the acts.
A commanding general of occupied territory is charged with the
duty of maintaining peace and order, punishing crime, and pro-
tecting lives and property within the area of his command. His
responsibility is coextensive with his area of command. He is
charged with notice of occurrences taking place within that terri-
tory. He may require adequate reports of all occurrences that
come within the scope of his power and, if such reports are incom-
plete or otherwise inadequate, he is obliged to require supple-
mentary reports to apprize him of all the pertinent facts. If he
fails to require and obtain complete information, the dereliction
of duty rests upon him and he is in no position to plead his own
dereliction as a defense. Absence from headquarters cannot and
does not relieve one from responsibility for acts committed in
accordance with a policy he instituted or in which he acquiesced.
He may not, of course, be charged with acts committed on the
order of someone else which is outside the basic orders which he
has issued. If time permits he is required to rescind such illegal
orders, otherwise he is required to take steps to prevent a recur-
rence of their issue.

Want of knowledge of the contents of reports made to him is not
a defense. Reports to commanding generals are made for their
special benefit. Any failure to acquaint themselves with the
contents of such reports, or a failure to require additional reports
where inadequacy appears on their face, constitutes a dereliction
of duty which he cannot use in his own behalf.

The reports made to the defendant List as Armed Forces Com-
mander Southeast charge him with notice of the unlawful killing
of thousands of innocent people in reprisal for acts of unknown

1271

members of the population who were not lawfully subject to such
punishment. Not once did he condemn such acts as unlawful.
Not once did he call to account those responsible for these in-
humane and barbarous acts. His failure to terminate these un-
lawful killings and to take adequate steps to prevent their
recurrence constitutes a serious breach of duty and imposes crim-
inal responsibility. Instead of taking corrective measures, he
complacently permitted thousands of innocent people to die before
the execution squads of the Wehrmacht and other armed units
operating in the territory. He contends further that many of
these executions were carried out by units of the SS, the SD, and
local police units which were not tactically subordinated to him.
The evidence sustains this contention but it must be borne in mind
that in his capacity as commanding general of occupied territory,
he was charged with the duty and responsibility of maintaining
order and safety, the protection of the lives and property of the
population, and the punishment of crime. This not only implies
a control of the inhabitants in the accomplishment of these pur-
poses, but the control and regulation of all other lawless persons
or groups. He cannot escape responsibility by a claim of a want
of authority. The authority is inherent in his position as com-
manding general of occupied territory. The primary responsi-
bility for the prevention and punishment of crime lies with
the commanding general ; a responsibility from which he cannot
escape by denying his authority over the perpetrators.

The record shows that after the capitulation of Yugoslavia
and Greece, the defendant List remained as the commanding
general of the occupied territory. As the resistance movement
developed, it became more and more apparent that the occupying
forces were insufficient to deal with it. Repeated appeals to
the High Command of the Armed Forces for additional forces
were refused with the demand for a pacification of the occupied
territory by more draconic measures. These orders were pro-
tested by List without avail. He contends that although such
orders were in all respects lawful, he protested from a humani-
tarian viewpoint. It is quite evident that the High Command
insisted upon a campaign of intimidation and terrorism as a
substitute for additional troops. Here again the German theory
of expediency and military necessity (Kriegsraeson geht vor
Kriegsmanier) superseded established rules of international law.
As we have previously stated in this opinion, the rules of inter-
national law must be followed even if it results in the loss of a
battle or even a war. Expediency or necessity cannot warrant
their violation. What then was the duty of the Armed Forces
Commander Southeast? We think his duty was plain. He was

1272

authorized to pacify the country with military force; he was
entitled to punish those who attacked his troops or sabotaged
his transportation and communication lines as franc-tireurs ; he
was entitled to take precautions against those suspected of partici-
pation in the resistance movement, such as registration, limita-
tions of movement, curfew regulations, and other measures here-
inbefore set forth in this opinion. As a last resort, hostages and
reprisal prisoners may be shot in accordance with international
custom and practice. If adequate troops were not available or
if the lawful measures against the population failed in their pur-
pose, the occupant could limit its operations or withdraw from
the country in whole or in part, but no right existed to pursue
a policy in violation of international law.

The record establishes that List was an officer of the “old
school” which quite generally resented the control of the National
Socialist Party over the Wehrmacht. That Adolf Hitler in his
capacity as Commander in Chief of the Armed Forces was gen-
erally considered a rank amateur in military matters by this
group seems to be quite well established. The subsequent retire-
ment of List “by request” because of a difference of opinion
with Hitler on tactical matters during the Russian campaign
further sustains his claimed viewpoint with respect to his rela-
tions with Hitler and the National Socialist Party. List states
that his views on political matters were not inconsistent with his
subsequent military service. It was his opinion that Hitler came
to power in a lawful manner and that his obligation as a soldier
and his loyalty to his country required him to continue in mili-
tary service. That he was not in accord with many of the orders
of the High Command of the Armed Forces with reference to the
pacification of Yugoslavia and Greece is shown by the record.
That his appeals for more troops for the subjugation of the grow-
ing resistance movement were met with counterdirectives and
orders by Hitler and Keitel to accomplish it by a campaign of
terrorism and intimidation of the population is amply estab-
lished. That his orders and directives were more moderate than
those of his superiors cannot be questioned. It is clear also
that he was continually plagued with the operations of organi-
zations receiving orders direct from superiors in Berlin, such as
the SS, the SD, the SA, and emissaries of Goering in the admin-
istration of his Four Year Plan.

That German prisoners captured by the resistance forces were
tortured, mutilated, and killed is shown by the evidence. In this
connection, we point out the extent to which unlawful reprisals
and counterreprisals may lead. Excesses on the part of troops
are bound to occur in any way but certainly they will be more

1273

vicious and barbarous if cruelty and harshness constitute the
policy of the commanding officers. It is almost inevitable that oi
the murder of innocent members of the population, including e>
the relatives and friends of the francs-tireurs, would generate ti
a hatred that was bound to express itself in counterreprisals and 1
acts of atrocity. As the severity of the draconic measures of I }
the Wehrmacht were stepped up, so also were the reprisals in t
answer thereto. There could be but one result, a completely s
chaotic condition with an absolute disregard of the laws of war \
on the part of the fighters of both forces with acts of atrocity i
progressively increasing. The situation provides adequate proof i
for the necessity of enforcing the laws of war if torture and
barbarity are to be restrained. The failure of the nations of the
world to deal specifically with the problem of hostages and re-
prisals by convention, treaty, or otherwise, after the close of
World War I, creates a situation that mitigates to some extent
the seriousness of the offense. These facts may not be employed, j
however, to free the defendant from the responsibility for crimes
committed. They are material only to the extent that they bear
upon the question of mitigation of punishment.

We conclude therefore that the evidence establishes the guilt of
the defendant List beyond a reasonable doubt on counts one and
three.

On or about 24 October 1941, the defendant Kuntze was ap-
pointed Deputy Armed Forces Commander Southeast and com-
mander in chief of the 12th Army. It is evident from the record
that the appointment was intended as a temporary one for the
period of the illness of Field Marshal List. He assumed the
command on his arrival in the Balkans on 27 October 1941. He
was superseded by General Alexander Loehr in June 1942, but
remained in the position until the arrival of General Loehr on
8 August 1942.

The record shows that in June 1940, before coming to the
Balkans, the defendant Kuntze became the commander of the
XLII Army Corps. In June 1941, this corps was transferred to
East Prussia where it was subordinated to the 9th Army in the
fighting against the Russians. From the middle of July 1941
to October 1941, the corps was subordinated to the 18th Army.
Pursuant to orders previously received, the corps, on or about
8 October 1941, commenced operations for its transfer to the
Crimea which were concluded on 20 October 1941. It was upon
the arrival of Kuntze in the Crimea that he received the order
tc report to Hitler that resulted in his appointment as Deputy
Armed Forces Commander Southeast.

The defendant Kuntze is charged with issuing, distributing, and
executing the Commissar Order of 6 June 1941, wherein Hitler

1274

ordered the killing of captured commissars. In this connection,
evidence was offered that from 1 July 1942 to 4 July 1942 cap-
tured commissars were killed by the 217th Infantry Division.
The evidence shows that this division was subordinated to the
XLII Corps from August 1941 until the corps was transferred to
the Crimea. Consequently, the defendant Kuntz6 is not charge-
able with the acts of the 217th Infantry Division that occurred
prior to August 1941. Evidence was also offered showing that
units of the 61st Infantry Division killed a number of captured
commissars between 26 September 1941 and 28 October 1941.
It is evident that the killing of political commissars after 6
October 1941 cannot be charged to the defendant Kuntze for the
reason that the XLII Corps was on that date moving to the
Crimea. The 61st Infantry Division remained behind and in
the very nature of things was no longer subordinate to the XLII
Corps. There appears in the war diary of the 61st Infantry
Division, however, under date of 26 September 1941, a recitation
of the shooting to death of saboteurs and commissars by the
Field Gendarme Squad 161a, a unit subordinate to the 61st In-
fantry Division. The defendant Kuntze admits that the 61st
Infantry Division was subordinate to him from the middle of
September 1941 to the first part of October, of the same year.
He denies that he ordered any such action or authorized anyone
to carry it out. He states that he had never heard of this
incident and had no knowledge of the shooting of any commissar
by any unit subordinate to him. He states further that the army
commander to whom he was subordinate had specifically directed
him to treat commissars as prisoners of war and that he com-
plied in all respects with that order. We do not think the fore-
going evidence is sufficient to hold the defendant criminally
responsible for the issuance, distribution, or execution of the
Commissar Order. Nor does the evidence establish that the
Commissar Order was made effective in the Balkan area. It
will not sustain a finding that this order was issued, distributed,
or executed by the defendant Kuntze during the time he was
Deputy Armed Forces Commander Southeast.

This defendant is also charged with issuing, distributing, and
executing the Commando Order of 18 October 1942, ( C-81 , Pros .
Ex. 225) during the period of his command in the Balkans. By
this order, issued by Hitler in person, all sabotage troops gen-
erally referred to as commandos were to be shot immediately
upon capture. The record shows that Kuntze was relieved of
his command by General Loehr on 8 August 1942. Consequently,
the order was not issued until after Kuntze had left the south-
eastern area. The prosecution has not attempted to disprove

1275

893964-51-

S3

this fact and it must be treated as established. The defendant
Kuntze has not been shown to have violated any duty with ref-
erence to his treatment of commandos or other groups mentioned
in the Commando Order.

We hold also that the resistance forces with which we are here
concerned were not entitled to be classed as lawful belligerents
during the period the defendant Kuntze was Deputy Armed
Forces Commander Southeast. The reasons stated in the treat-
ment of this subject in its relation to the defendant List apply
as well to the defendant Kuntze and they will not be repeated
here. No criminal responsibility can therefore attach to him
because of the killing of captured members of the resistance
forces, they being francs-tireurs subject to such punishment.

The defendant Kuntze contends that a right exists to take re-
prisals by killing hostages and reprisal prisoners in retaliation
for the criminal acts of the resistance forces and other unknown
persons. He asserts also that members of bands and those sup-
porting them were used for reprisal purposes and that he knew of
no instance where a contrary course was pursued. He denies
that excessive and disproportionate reprisals were taken and
claims to have had little or no knowledge of the harsh measures
taken as shown by the war diaries, orders, and reports offered in
evidence. He further contends that the measures taken were
prescribed by superiors whose orders he was bound to follow.
The legal questions thus raised have been dealt with in disposing
of the case against the defendant List and will not for reasons
of brevity be repeated here. The factual situation will however
be examined.

The defendant Kuntze assumed command in the Southeast on
27 October 1941, a month which exceeded all previous monthly
records in killing innocent members of the population in reprisal
for the criminal acts of unknown persons. On 9 October 1941,
2,200 Communists and Jews were shot in reprisal for 22 German
soldiers of the 521st Army Signal Communication Regiment mur-
dered at Topola; on 18 October 1941, 1,786 men and 19 Com-
munist women were shot in reprisal for German losses sustained
in the fight for Kraljevo; on 19 October 1941, 182 men were shot
to death in Meckovac and 1,600 men from Valjevo were shot to
death in reprisal for 16 Germans killed and 24 wounded; on
21 October 1941, 2,300 Serbs of various ages and professions were
shot to death; on 27 October 1941, 101 arrestees were shot to
death with further killings to be carried out after more arrestees
had been turned in; and on 28 October 1941, 2,200 Serbs were
shot for 10 German soldiers killed and 24 wounded in action. It
seems highly improbable that Kuntze could step into the command

1276

in the Southeast in the midst of the carrying out and reporting of
these reprisal actions without gaining knowledge and approval.
Reports made to the defendant Kuntze, shown in the evidence,
reveal that on 29 October 1941, 76 persons were shot in reprisal
in Serbia; on 2 November 1941, 20 persons were shot to death
near Loznica; on 2 November 1941, 125 persons were shot to
death at Valjevo; and on 27 November 1941, 265 Communists
were shot as a reprisal measure at Valjevo. Under date of
31 October 1941, the commanding general in Serbia, General
Boehme, recapitulated the shootings in Serbia in a report to
Kuntze as follows: “Shootings — 405 hostages in Belgrade (total
up to now in Belgrade 4,750), 90 Communists in Camp Sabac,
2,300 hostages in Kragujevac, 1,700 hostages in Kraljevo.” In a
similar report under date of 30 November 1941, General Boehme
reported to Kuntze as follows: “Shot as hostages (total) 534
(500 of these by Serbian auxiliary police).” Many other similar
shootings are shown by the record. Included was a report cover-
ing the whole period of the resistance movement up to and in-
cluding 5 December 1841, wherein it is shown that 31,338 reprisal
prisoners were to be shot on the basis of the 100 to 1 order, that
11,164 had been shot and that 20,174 remained to be shot in
reprisal to fulfill the quota fixed on the 100 to 1 basis.

On 5 December 1941, the new commanding general in Serbia,
General Bader, ordered the basic reprisal ration reduced to 50
reprisal prisoners for each German killed and 25 for each Ger-
man wounded. The defendant Kuntze asserts that this reduction
of ratio was in a large part due to his insistence and effort in
that direction. Thereafter, the killing of hostages and reprisal
prisoners continued. In a daily report to the defendant Kuntze,
General Bader stated that 449 reprisal prisoners were shot to
death in January 1942, and the 3,484 additional shootings had
been ordered to commence immediately to balance the reprisal
killings against the Germans killed and wounded on the fixed ratio.
On 21 February 1942, General Bader reported the shooting of
570 Communists by the Serbian auxiliary Gendarmerie, on 23
February 1942, the shooting of 403 reprisal prisoners, and on
25 February 1942, the shooting of 110 Communists in reprisal.

On 19 March 1942, the defendant Kuntze issued an order
regarding the combating of insurgents which stated in part
( NOKW-835 , Pros. Ex. 18b) :

“I expect troop leaders of all ranks to show special energy
and ruthless action as well as to commit fully their own person
for the duty with which they are charged, which is to preserve
quiet, order, and security by all means. All soldiers who do

1277

not follow orders and who do not act decisively are to be called
to account.

“By means of brutal police and secret police measures, the
formation of insurgent bands is to be recognized in its incep-
tion and to be burnt out. Captured insurgents are to be
hanged or to be shot to death as a matter of principle ; if they
are being used for reconnaissance purposes, it merely means a
slight delay in their death.”

In the directives accompanying the foregoing order, it was
stated :

“The more unequivocal and the harder reprisal measures are
applied from the beginning the less it will become necessary
to apply them at a later date. No false sentimentalities! It
is preferable that 50 suspects are liquidated than one German
soldier lose his life * * *. Villages with Communist adminis- .
tration are to be destroyed and men are to be taken along as
hostages. If it is not possible to produce the people who have
participated in any way in the insurrection or to seize them,
reprisal measures of a general kind may be deemed advisable,
for instance the shooting to death of all male inhabitants from
the nearest villages, according to a definite ratio (for instance,

1 German dead — 100 Serbs; 1 German wounded — 50 Serbs).”

The shooting of large numbers of reprisal prisoners and hostages
was reported to Kuntze after the issuance of the foregoing order
and directive.

Although he was advised of all these killings of innocent per-
sons in reprisal for the actions of bands or unknown members
of the population, Kuntze not only failed to take steps to prevent
their recurrence but he urged more severe action upon his sub-
ordinate commanders. Not once did he attempt to halt these
disproportionate reprisals. He directed the burning down of all
villages having a Communist administration and the taking of all
the male inhabitants as hostages. He directed the taking of re-
prisal measures against the population generally such as the
shooting to death of all the male inhabitants of the nearest village
on the basis of 100 for each German killed and 50 for each Ger-
man wounded. In many cases persons were shot in reprisal who
were being held in collecting camps without there being any con-
nection whatever with the crime committed, actual, geographical,
or otherwise. Reprisal orders were not grounded on judicial
findings. The order and directives which brought about the
killing of these innocent members of the population constitute
violations of international law which are punishable as crimes.

1278

The orders he issued and his subsequent failure to take steps to
end these unlawful killings after they had been reported to him
makes him criminally responsible under the law previously an-
nounced and applied in, this opinion to the defendant List.

With reference to the alleged mistreatment of Jews and other
racial groups within the area commanded by the defendant
Kuntze during the time he was Deputy Armed Forces Com-
mander Southeast, the record shows the following: On 3 Novem-
ber 1941, the chief of the administrative staff, an official sub-
ordinate to General Boehme, who was in turn subordinate to the
defendant Kuntze, ordered the immediate arrest of all Jews and
gypsies as hostages and the deportation of their wives and chil-
dren to an assembly camp near Belgrade. On 4 November 1941,
a detailed report concerning the shooting of Jews and gypsies
between 27 and 30 October 1941, is shown in the war diary of
the 433d Infantry Regiment [704th Infantry Division]. ( NOKW -
905, Pros . Ex. 1 Jp3.)* The lurid details of the shooting of these
2,200 persons is graphically recited in this report. A report under
date of 5 December 1941 containing the notes of the Armed
Forces Commander Southeast (Kuntze) made on a tour of in-
spection says in part: “All Jews and gypsies are to be transferred
into a concentration camp at Semlin (at present there are about
16,000 people there). They were proved to be the bearers of
the communication service of the insurgents.” On 4 February
1942, the 704th Infantry Division reported to General Bader
that it had delivered 161 partisans, 17 Jews, and 2 Jewesses to the
SD — Belgrade. On 19 March 1942, General Bader reported to the
defendant Kuntze that 500 Jews had been transported from
Metrovica to Semlin. On 10 March 1942, General Bader reported
to Kuntze that in the Jewish camp of Semlin there were 5,780
persons, mostly women and children. On 20 April 1942, Gen-
eral Bader reported to the defendant Kuntze that in the concen-
tration camps there were 182 hostages, 3,266 reprisal prisoners,
and 4,005 Jews.

The foregoing evidence shows the collection of Jews in con-
centration camps and the killing of one large group of Jews and
gypsies shortly after the defendant assumed command in the
Southeast by units that were subordinate to him. The record
does not show that the defendant Kuntze ordered the shooting
of Jews or their transfer to a collecting camp. The evidence
does show that he had notice from the reports that units sub-
ordinate to him did carry out the shooting of a large group of
Jews and gypsies as hereinbefore mentioned. He did have knowl-
edge that troops subordinate to him were collecting and trans-

* Ibid.

1279

porting Jews to collecting camps. Nowhere in the reports is it
shown that the defendant Kuntze acted to stop such unlawful
practices. It is quite evident that he acquiesced in their per-
formance when his duty was to intervene to prevent their recur-
rence. We think his responsibility for these unlawful acts is
amply established by the record.

There is some evidence in the record that portions of the popu-
lation were being deported for labor service in Germany, Norway,
and other territories subjected to German influence. We are
of the opinion that Kuntze’s responsibility therefor, if such de-
portations were in fact carried out, has not been established
beyond a reasonable doubt.

There is also some evidence concerning an improper use of the
population in labor service in clearing mines and building mili-
tary establishments. In this respect, the language of the reports
is not definite and the testimony offered is not clear that such
alleged acts were unlawful ones for which this defendant could be
held responsible.

The defendant Kuntze denies that he was in any way re-
sponsible for the commission of unlawful acts by troops sub-
ordinate to him. While the record does not show that he ever
ordered a ratio to be applied in the execution of reprisal meas-
ures, the record does show that he urged more severe measures
and a direction that a ratio of 100:1 for each German killed and
50:1 for each German wounded be applied where the perpetrators
could not be found. Reports made to him show that he was not
without knowledge of the reprisals being taken and the ratios
being applied. His claim of a lack of knowledge of the crimes
being committed cannot be sustained.

It is true, as shown by the record, that the acts complained
of were ordered by his superiors. While this is not a defense,
it is a matter for consideration in mitigation of punishment.
He says, and it is not disputed, that he objected to the high com-
mand because of the harshness of orders received. That he was
not in high favor with Hitler and the Nazi Party is borne out
by the record. That he was continually pressed by his superiors
to invoke more severe measures is clearly shown. He was plagued
with the operations of organizations receiving their orders direct
from Berlin in the same manner as was the defendant List. He
was faced with a type of unlawful warfare that presented many
difficult problems for solution by the commanding general. While
many extenuating circumstances are shown by the record, his
guilt in permitting the killing of innocent members of the popu-
lation and the transportation of Jews to concentration camps
is amply shown.

1280

The defendant Kuntze, at the time of the commission of the
acts charged, was a professional soldier with forty years experi-
ence. He knew or ought to have known that the killing of
thousands of the population under the guise of carrying out re-
prisal measures when such reprisal measures were legitimate in
no sense of the word made them crimes no matter what name was
applied to them.

The defendant says that order and security was the objective
sought by him in the Southeast and that reprisal measures were
taken for the purpose of deterring attacks upon German soldiers
and the sabotaging of communication lines and military installa-
tions. But this is only a partial explanation. It appears from
the record that the High Command was endeavoring to secure
order and security in the Southeast without adequate troops and
equipment. It is evident that order and security was sought by
applying intimidating measures against the population in lieu
of adequate troop commitments. This led to the barbarous
abuses of the law of hostages and reprisals which we have set
forth. The contention that military expediency or necessity jus-
tifies the acts cannot be accepted as valid. There are certain
acts otherwise unlawful which are proper when military neces-
sity requires their doing, but the killing of great numbers of
the population in the manner here shown is not one of them.
The collection of Jews and gypsies in collection or concentration
camps merely because they are such is likewise criminal. The
defendant says that he never heard of any such action against
Jews or gypsies in the Southeast. The reports in the record
which were sent to him in his capacity as Armed Forces Com-
mander Southeast charge him with knowledge of these acts. He
cannot close his eyes to what is going on around him and claim
immunity from punishment because he did not know that which
he is obliged to know. We conclude therefore that the guilt of
the defendant Kuntze is shown by the evidence beyond a reason-
able doubt on counts one, three, and four.

The defendant Foertsch participated in the invasion of Yugo-
slavia and Greece as liaison officer with the 12th Army for OKH,
the High Command of the Army. On 9 May 1941, he was made
chief of staff of the 12th Army, then commanded by Field Mar-
shal List. With the appointment of Field Marshal List as Armed
Forces Commander Southeast, he became chief of staff to the
Armed Forces Commander Southeast and served in this posi-
tion during the tenures of Field Marshal List and Lieutenant
General Kuntze. In August 1942, he became chief of staff, Army
Group E, then commanded by General Alexander Loehr. In
August 1943, he became chief of staff, Army Group F, then corn-

1281

mandecl by Field Marshal von Weichs, a position he held until
4 March 1944 at which time his service in the Southeast came to
an end. It will be observed that the whole period of his stay in
the Southeast was in the capacity of chief of staff of the army
group commanding the territory.

The chief of staff was in charge of the various departments of
the staff and was the first adviser of the commander in chief.
It was his duty to provide all basic information for decisions by
the commander in chief and was responsible for the channeling
of all reports and orders. He had no troop command authority.
Neither did he have any control over the legal department which
was directly subordinate to the commander in chief. As chief
of staff he was authorized to sign orders on behalf of the com-
mander in chief when they did not contain any fundamental
decision and which did not require the exercise of judgment by
the subordinate to whom it was directed.

From the time Foertsch became chief of staff to the Armed
Forces Commander Southeast until late August 1941, the popu-
lation remained comparatively quiet. Signs of insurrection be-
gan to appear during the latter part of August which caused
considerable concern. It was the opinion of Field Marshal List
that additional troops were needed to cope with the situation.
His requests along this line were refused by the High Command
[of the Armed Forces]. About 20 September 1941, Foertsch
called upon Field Marshal Keitel, Chief of the High Command
[of the Armed Forces] , and set forth the views of Field Marshal
List concerning the situation in the Balkans. The views ad-
vanced by Foertsch were unequivocally rejected by Keitel who
asserted that List's responsibility was to obey that which had
been ordered. It appears therefore that the High Command
[of the Armed Forces] had fixed upon a campaign of severity
and intimidation as a substitute for an adequate number of troops.
The contention had been advanced that with adequate troops,
the shootings of hostages and reprisal prisoners would not have
been necessary from any standpoint. The defendant Foertsch
asserts, however, that with adequate troops, reprisals against
the population would still have been necessary. This view is
based on the fact that reprisal measures are dependent upon
the attitude of the population which, in any event would have
been incited to commit acts of sabotage and other senseless actions
by certain hostile influences within and without the country.
It is the opinion of this defendant that reprisal measures against
the population were unavoidable under such circumstances.

On 5 September 1941, (NOKW-081^, Pros. Ex. U2)* Field Mar-

* ibil

1282

shal List’s order on the suppression of the Serbian insurrection
movement, which was quoted in part in the portion of the opinion
dealing with the defendant List, was issued. On 16 September
1941, the Keitel order fixing reprisal ratios of 50 up to 100 to 1
( NOKW-258 , Pros, Ex. 53) 1 was issued and distributed. Also
on 16 September 1941, Lieutenant General Boehme was placed
in charge of military operations in Serbia. During the occurrence
of these events, the defendant Foertsch was on leave and became
familiar with them upon his return in the latter part of Septem-
ber 1941.

It is the testimony of Foertsch that the Keitel order of 16
September 1941 fixing reprisal ratios from 50 up to 100 to 1
was the basic order under which reprisal measures were carried
out in the Southeast. The evidence shows the following reprisal
measures which were executed prior to the Keitel order and
on the reports of which the signature or initials of the defendant
Foertsch appear: On 16 July 1941, for sabotage in Obrenovac,
10 Communists shot to death. In Palanka, Communists were
caught while putting up posters, one was shot and two arrested.
On 25 July 1941, two attempts to destroy German motor vehicles
with bottles filled with gasoline were reported in reprisal for
which 100 Jews were to be shot. On 28 July 1941, 80 were shot
to death in reprisal for an attack on a police patrol, and 122
Communists and Jews were shot in Belgrade for previously
reported sabotage acts. On 1 August 1941, as reprisal for pre-
viously reported unrest near Petrovgrad, 90 Communists were
shot there. On 6 August 1941, 4 plotters and 90 Communists
and Jewish hostages were shot in Zagreb. On 7 August 1941,
the shooting of an additional 87 Communists and Jewish hostages
was reported. Other similar reports appear in the record. These
occurrences came to the attention of Foertsch as chief of staff
before the High Command [of the Armed Forces] had issued
any orders to the Armed Forces Commander Southeast pertain-
ing thereto. In other words, these killings took place before
any basic order had been issued by any officer superior to Field
Marshal List.

On 28 September 1941, Keitel’s order ( NOKW-i58 , Pros. Ex.
69 ) 2 on the taking of hostages was distributed. Parts of this order
are quoted in the portion of the opinion dealing with the defendant
List. This order was passed on to subordinate commanders
at the direction of his commanding general. The signature of
Foertsch appears on the order in his capacity as chief of staff.

1 Ibid.

2 Ibid.

1283

The evidence clearly shows that the reports of units subor-
dinate to the Armed Forces Commander Southeast invariably '
came to the attention of the defendant Foertsch if they had
strategic or operational importance. It was only when he was
on leave or absent on outside assignments that such reports
did not come to his notice. For all practical purposes, he had
the same information as the defendants List and Kuntze during
their tenures as Armed Forces Commanders Southeast. He
knew of the incidents held to be crimes that are recited in the
portions of the opinion dealing with the defendants List and
Kuntze. He was informed of the killing of hostages and re-
prisal prisoners. He was familiar with the illegal orders of
Hitler and Keitel prescribing reprisal ratios of 50 up to 100 to
1. He gained information through reports that such ratios
were being applied against the innocent members of the popu-
lation. He had information that concentration or collection
camps were established. He gained information through re-
ports that Jews were transported to concentration camps for
no other reason than that they were Jews, although he did not
know by whose order this was done. He knew of the burning
down of villages as reprisal measures. It is not necessary that
all these specific acts be recapitulated here. The defendant
Foertsch did not participate in any of them. He gave no orders
and had no power to do so had he so desired. He did distribute
some of the orders of the OKW, the OKH, and of his command-
ing generals. These orders will be reviewed as to their content
and legality.

The order of 16 September 1941, generally referred to as the
Keitel order of that date, which directed the killing of 50 to
100 members of the population for each German soldier killed
was received by the Armed Forces Commander Southeast at a
time when the defendant Foertsch was on leave. On his return
he became acquainted with the order but the evidence is clear
that he had no connection with its issuance or distribution.

The defendant Foertsch admits that he distributed Field
Marshal Keitel’s order of 28 September 1941, wherein it is
ordered that hostages of different political persuasions such as
Nationalists, Democrats, and Communists be kept available for
reprisal purposes and shot in case of an attack. He contends
that this order was a legal one and that his distribution of it
invokes no criminal responsibility.

The order of General Boehme under date of 10 October 1941
providing for the killing of 100 prisoners or hostages for each
German killed and 50 for each German wounded was known to
Foertsch through the reports made to the Armed Forces Corn-

1284

mander Southeast. That it was repeatedly applied was also
evident to him from General Boehme’s reports to List and
Kuntze.

The defendant Foertsch admits that he distributed General
Kuntze’s order of 19 March 1942 ( NOKW-835 , Pros. Ex. 18U)
wherein it was ordered that more severe reprisal measures be
taken and directed that reprisals be taken in accordance with a
definite ratio “for instance, 1 German dead — 100 Serbs; 1 Ger-
man wounded — 50 Serbs.” It is the contention of Foertsch
that this order which is more fully set forth in the portion of
the opinion dealing with the defendant Kuntze was advisory
only because of the use of the words “for instance” and “might”
in connection with the figure 100. He contends that this order
was consistent with his position that reprisals were lawful
although he personally did not approve of the high ratios to be
uniformly applied.

The Commando Order of 18 October 1942 ( C-81 , Pros. Ex.
225) was distributed by Army Group E, commanded by General
Alexander Loehr and of which Foertsch was then chief of staff.
As to this order Foertsch states that he considered this order
unlawful in that it called for the commission of offenses and
crimes under international law but that he assumed that the
issuance of the order was in answer to similar actions by the
enemy in contravention of international law. It has not been
shown that the defendant knew this order was in fact carried
out in the territory in which he served.

The record further shows that in July 1943, the defendant dis-
tributed a Hitler order providing that partisans should no longer
be killed but treated as prisoners of war and sent to the Reich for
forced labor in mines. The defendant states that as such persons
were subject to the death penalty, it was not unlawful to deport
them for labor service. He closes his comments on this order
with the statement that he had no power to rescind, modify,
or palliate this order in his capacity as chief of staff.

The prosecution contends that Foertsch as chief of staff of
the various army groups successively in command in the South-
east, was a powerful and influential figure. It is insisted that
he exercised this power and influence upon his various com-
manders in chief in such a manner as to incriminate himself
irrespective of the fact that he had no command responsibility.
The charge that a conspiracy existed which had for its purpose
the decimation and annihilation of various racial and religious
groups finds support in the record but it fails utterly to establish
that the defendant Foertsch, or any of the armed forces officers
jointly charged with him, ever became a party to any such

e

1285

preconceived plan. We think the evidence shows that insofar
as the defandant is concerned the actions in the Southeast were
motivated by a desire to attain peace and order among the
civilian population — a matter that was essential to an adequate
program of defense against an Allied invasion.

The nature of the position of the defendant Foertsch as chief
of staff, his entire want of command authority in the field, his
attempts to procure the rescission of certain unlawful orders
and the mitigation of others, as well as the want of direct evi-
dence placing responsibility upon him, leads us to conclude
that the prosecution has failed to make a case against the de-
fendant. No overt act from which a criminal intent could be
inferred, has been established.

That he had knowledge of the doing of acts which we have
herein held to be unlawful under international law cannot be
doubted. It is not enough to say that he must have been a guilty
participant. It must be shown by some responsible act that
he was. Many of these acts were committed by organizations
over which the armed forces, with the exception of the com-
manding general, had no control at all. Many others were
carried out through regular channels over his voiced objection
or passive resistance. The evidence fails to show the commis-
sion of an unlawful act which was the result of any action,
affirmative or passive, on the part of this defendant. His mere
knowledge of the happening of unlawful acts does not meet the
requirements of criminal law. He must be one who orders,
abets, or takes a consenting part in the crime. We cannot say
that the defendant met the foregoing requirements as to par-
ticipation. We are required to say therefore that the evidence
does not show beyond a reasonable doubt that the defendant
Foertsch is guilty on any of the counts charged.

The defendant von Geitner became chief of staff to the com-
manding general in Serbia (General Paul Bader) on 10 July
1942. He continued in this position until August 1943. He
thereupon became chief of the general staff to the Military
Commander Serbia and Military Commander Southeast (General
Hans Felber), a newly established position. He continued in
this position until October 1944. During the entire period of
his service in the Balkans, the defendant von Geitner served only
as chief of staff. His duties generally had to do with operations,
supplies, training, and organization of troops. In addition to
this staff, there existed an administrative staff which dealt
directly with matters pertaining to the administration of Serbia
and a third staff headed by the Plenipotentiary for Economy.
While the persons in charge of the latter two staffs were per-

1286

sonally subordinate to the military commander, the first re-
ceived orders direct from superiors in Berlin and the second
received orders from the administrators of the Goering Four
Year Plan. In addition, there was a Higher SS and Police Leader
in the territory who hacf charge of police units and the police
security program. He, too, was subordinate to the military
commander personally, but received his general orders from the
Reich Leader SS directly. The police troops were subordinate
to the commanding general only when needed for tactical commit-
ment. These devious command channels with their overlapping
powers were a constant source of trouble to the commanding
general. A complete understanding of the nature of the sub-
ordination of each to the armed forces commander is necessary
to the fixing of the responsibility, if any, that may be charged
to the officers of the Wehrmacht. The burden rests upon the
prosecution to establish the responsibility of the defendant von
Geitner in ordering, aiding, abetting, or taking a consenting
part in the crimes charged against him.

The genera] allegations against the defendant von Geitner
follow the pattern of those charged against the defendant
Foertsch and insofar as identical situations are concerned, the
discussion will not be repeated here. There is one situation
here involved that was not discussed at length in the case
against the defendant Foertsch. The evidence shows that de-
fendant von Geitner initialed or signed orders issued by his
commanding general for the shooting of hostages and reprisal
prisoners which were unlawful when viewed in the light of the
applicable international law. We shall therefore determine
the effect of such actions and the criminal responsibility that
may grow out of it.

The evidence shows that General Bader reserved unto himself
the authority to issue orders for the arrest of hostages and the
execution of all reprisal measures. It appears that the command-
ing general handled these matters with the aid of a special officer
who had been trained in the law. It was the duty of this officer
to examine the particular problem with regard to the correctness
of the description of events and submit his conclusion to the mili-
tary commander who made the decision. The defendant von
Geitner was necessarily informed of the order made by virtue
of his position. It became his duty to prepare the order and
approve its form which he usually did by placing his signature
or initials on it. This he contends is the extent of his partici-
pation in the issuing and distributing of reprisal orders.

The applications for reprisal actions were generally made by
(1) the administrative area headquarters, (2) by troop corn-

1287

manders, or (3) the Higher SS and Police Leader. They were
then referred to the special legal officer who worked on them
and submitted the result to the commander. The commander
then made the decision and delivered it to the defendant von
Geitner for preparation and approval as to form. The latter
was generally indicated by his initials or signature. The order
then was sent on its way through regular channels by von Geit-
ner. No doubt exists that the order was that of the military
commander and that the defendant von Geitner lacked the
authority to issue such an order on his own initiative. He con-
tends that he was opposed to the reprisal policy carried out in
this area, a statement sustained by the record. He does not
say that reprisal killings against the population were not neces-
sary or that he considered it unlawful to carry out such measures
under certain conditions. The question posed is whether the
stated participation of the defendant von Geitner in his capacity
as chief of staff is sufficient to establish criminal liability.

The evidence fails to show beyond a reasonable doubt that
he aided, abetted, or took a consenting part in acts which were
crimes under international law. No responsible act is shown
to have been committed by him from which a guilty intent
can be inferred. The charge that a conspiracy existed which had
for its purpose the decimation and annihilation of racial and
religious groups is not established by sufficient evidence insofar
as this defendant is concerned. The record does not show his par-
ticipation in slave labor programs or concentration camp activi-
ties, although he knew of them. His testimony that he opposed
all such measures is not effectively disputed. These things,
coupled with the nature and responsibilities of his position and
the want of authority on his part to prevent the execution of
the unlawful acts charged, serve to relieve him of criminal
responsibility. We find the defendant von Geitner not guilty.

Presiding Judge Wennerstrum : The defendant Rendulic be-
came commander in chief of the 2d Panzer Army on 26 August
1943, and remained in the position until June 1944. In July 1944,
he became the commander in chief of the 20th Mountain Army,
a position which he held until January 1945. In December 1944,
he became the Armed Forces Commander North in addition to
that of commander in chief of the 20th Mountain Army. In
January 1945, he became commander in chief of Army Group
North, a position which he held until March, 1945. These are
the assignments during which the crimes set forth in the indict-
ment are alleged to have occurred. At the time he assumed
command of the 2d Panzer Army, the LXIX Corps, the XV
Corps, the XXI Corps, the V SS Corps, and two Croation corps

1288

constituted the greater portion of the 2d Panzer Army. The
headquarters of the army was in Croatia and its principal task
was the guarding of the coast against enemy attacks and the
suppression of band warfare in the occupied area. The Italians
also had several army corps stationed in the immediate terri-
tory. The danger of the collapse of the Italian Government and
the possibility that the Italians might thereafter fight on the
side of the Allies was a constant threat at the time of his
assumption of the command of the 2d Panzer Army.

The Hitler order of 15 September 1941 providing for the kill-
ing of 100 reprisal prisoners for each German soldier shot and
50 for each German soldier wounded had been distributed to
the troops in the Southeast and, in many instances, carried out
before the defendant Rendulic assumed command of the 2d
Panzer Army. The order was invalid and one who executed
an order to kill reprisal prisoners under all circumstances at
the ratio therein set forth performed a criminal act. The rea-
sons for this have hereinbefore been set out in this opinion. It
is claimed, however, that the order was never carried out by
troops of the 2d Panzer Army and that consequently no duty
arose on the part of this defendant to take measures to prevent
the enforcement of the order. It appears, however, that on 18
August 1943, Keitel issued an order containing the following
[NOKW-509, Pros. Ex. 340] : “Commanders having the rank of
at least that of divisional commander are empowered in cases of
particularly malicious procedure on the part of bandits or their
accomplices to issue precautionary directives not to take any
prisoners or, respectively, that prisoners and the population cap-
tured in the combat area may be shot. Without adequate orders,
local commanders will act according to their own responsibility.”
On 15 September 1943, this defendant issued an order which in
part stated:

“Attacks on German members of the Wehrmacht and dam-
ages to war important installations are to be answered in
every case by the shooting or hanging of hostages and the
destruction of surrounding villages, which is to take place, if
possible, after the arrest of the male population which is
capable of bearing arms. Only then will the population inform
the German authorities if bandits collect, so as to avoid reprisal
measures.

“Unless in individual cases different orders are issued the
rule for reprisal measure is: 1 German killed, 50 hostages, 1
German wounded, 25 hostages shot or hanged. Kidnapping of
a German will be considered equal to killing a German unless
the kidnapped person does not return within a definite period.
According to the severity of the attack 100 hostages will be

1289

hanged or shot for each attack against war essential installa-
tions. These reprisal measures are to be executed if the culprit

is not caught within 40 hours. ,,

The reports of corps commanders subordinate to the defendant
reveal that reprisals were taken against the population for attacks
upon troops and military installations. On 11 November 1943,
the 173d Reserve Division reported the hanging of 20 hostages
and the shooting of 20 hostages for railroad sabotage. On 21
September 1943, 10 hostages were hanged by the 187th Reserve
Division for an attack on a truck. On 4 October 1943, the 173d
Reserve Division reports the execution of 40 hostages in reprisal
for railroad sabotage. On 10 October 1943, the 187th Reserve
Division reported the killing of 20 people suspected of belong-
ing to the bands. On 31 October 1943, the 187th Reserve Divi-
sion reports the killing of 9 people suspected of being bandits.
On 7 November 1943, the 173d Reserve Division hanged 19 Com-
munists at scene of an explosion on a railroad in reprisal. On
8 November 1943, the 173d Reserve Division shot 21 hostages
as reprisal for an attack on a freight train. On 30 November
1943, the 187th Reserve Division reports killing 15 people sus-
pected of belonging to bands in reprisal, the offense for which
the reprisal was taken not being stated. The foregoing consti-
tute a partial list of reprisal and hostage killings as shown by
the 'reports of the LXIX Reserve Corps, commanded by the
defendant Dehner, and to whom the 173d and 187th Reserve
Divisions were subordinate. These reports were made to the
2d Panzer Army, commanded by the defendant Rendulic and
to whom the LXIX Reserve Corps was subordinate.

They carried little or no information in addition to that which
we have stated. The defendant made no attempt to secure addi-
tional details. All attempts to apprehend the guilty persons were
abandoned. Public proclamations upon the taking of hostages
were not made. Previous notice was not given the public that
reprisals by shooting would be taken if unlawful acts were re-
peated. Court martial proceedings were not held as required.
Hostages, reprisal prisoners, and partisans were killed without
even the semblance of a judicial hearing.

On occasion interrogations were held but these were primarily
to gain information rather than an attempt to give the persons
interrogated a fair and impartial hearing. It is evident that the
taking of reprisal measures by shooting members of the popula-
tion became so common that the German commanders became
indifferent to the seriousness of the acts. They appear to have
been accepted as legitimate acts of war with the extent of their
use limited only by the whim or judgment of divisional corn-

1290

manders. The records further indicate that arrested persons
whose guilt could not be established were generally held as
reprisal prisoners. This resulted, of course, in the death of the
arrestee in any event. There was no requirement that hostages
or reprisal prisoners killed should be connected with the offense
committed, either passively, actively, or by proximity. The prac-
tice employed in the killing of hostages and reprisal prisoners
was not one of last resort. The general notion seems to have
been expressed by General Alexander Loehr in an order bearing
the date 22 December 1943, while acting as Commander in Chief
Southeast for Field Marshal von Weichs, wherein he said
(NOKW -172, Pros. Ex. 379) :

“The reprisal, penal, and retaliation measures practiced up
to now must in the future take into account the new political
objectives. The first principle has to be, in cases of attacks,
acts of sabotage, etc., to seize the perpetrator himself and to
take reprisal measures only as a second course, if through re-
prisal measures the prevention of future attacks is to be ex-
pected. ”

The order of 15 September 1943, signed and issued by the de-
fendant Rendulic indicates his advocacy of these excessive and
irregular hostage and reprisal measures. It is true, as he con-
tends, that they were consistent with and directed by his
superiors. It is also true that the record does not indicate
that he ever issued an order directing the killing of a specific
number of hostages or reprisal prisoners as retaliation for any
particular offense. The issuance of such orders was delegated
to divisional commanders. Their activities were known to him
through reports. He acquiesced in them and took no steps to
shape the hostage and reprisal practices in conformity with the
usages and practices of war. While mitigating circumstances
exist which must receive the careful consideration of the Tribunal,
the defendant must be held guilty of ordering, furthering, and
acquiescing in the unlawful killing of innocent inhabitants of
occupied territory.

The evidence further shows that on 3 September 1943, Italy
surrendered unconditionally to the Allies. The surrender was
announced publicly on 8 September 1943. The defendant testi-
fies that this event was anticipated by him as well as the possi-
bility that Italy would become an enemy of the Germans. His
testimony is to the effect that the German Army in performing
its task of guarding the coast to prevent an Allied landing, could
not tolerate the presence of hostile Italians in these coastal areas.
Holding these definite views of the necessities of the situation,

803964—51 84

1291

the defendant set about removing the Italians from the coastal
areas by making them prisoners of war.

It appears that the Italian troops stationed in Greece, Yugo-
slavia, and Albania were subordinated to Army Group Este,
commanded by General of the Army Rossi. The Italian troops
within the area occupied by the 2d Panzer Army, with the excep-
tion of one army corps, were subordinated to the Italian 9th
Army under the command of General Dalmazzo. The defendant,
knowing General Rossi to be hostile to the desires of the Ger-
man command, caused him to be taken into custody. General
Dalmazzo was thereupon taken to Belgrade by the Germans and
“assigned” to the command of Army Group Este in the place of
General Rossi. It was with the latter general that the defendant
negotiated for the surrender of the Italian troops within the
area of the 2d Panzer Army. Even though outnumbering the
Germans at least 20 to 1 and without orders to so do, General
Dalmazzo entered into an agreement with the defendant for
the surrender of the 9th Italian Army. The defendant there-
upon caused Italian commanders to be notified that they would
be shot as francs-tireurs if they continued to resist and failed
to order their troops to surrender to the Germans. In case of
destruction or looting of arms, ammunition, fuel, and supply
depots, it was ordered by defendant that one staff officer and
50 men from each division concerned would be shot. Death was
threatened to all Italian soldiers who failed to turn in their
guns, for selling or giving away or destroying their arms, and
many similar acts too numerous to mention here. The defendant
Rendulic states that no Italians were shot pursuant to these sanc-
tions.

On 11 and 13 September 1943, and subsequent to the issuance
of the preceding sanctions, the defendant received Fuehrer orders
directing that the officers of all Italian units who had cooperated
with insurgents or permitted their arms to fall into the hands
of insurgents, were to be shot and that the officers of resisting
units who continued their resistance after receipt of a short
ultimatum also were to be shot. The record discloses that the de-
fendant Rendulic was insistent that his corps commanders carry
out these orders “without any scruples.” In this connection it is
shown that troops subordinated to the XV Mountain Corps cap-
tured 300 Italian officers and 9,000 men who resisted capture at
Split. On 6 October 1943, it was reported to the 2d Panzer Army
by the XV Mountain Corps that three generals and 45 officers
had been sentenced to death by a general court martial and exe-
cuted. The report further states that nine additional Italian
officers had been found guilty of treason and shot. Under date

1292

of 9 October 1943, the XXI Mountain Corps reported to the 2d
Panzer Army that reprisal measures were carried out against
18 Italian officers.

It is the contention of the defendant Rendulic that the sur-
render of the 9th Italian Army, commanded by General Dalmazzo,
brought about ipso facto the surrender of the Bergamo Division
in Split, and that elements of this division by continuing to resist
the German troops became francs-tireurs and thereby subject
to the death penalty upon capture. An analysis of the situation
is required for clarification.

The evidence shows that the 9th Italian Army was occupying
the coastal area jointly with the German Armed Forces as an
ally until the collapse of Italy. That danger existed in the
possibility of the area becoming an enemy bridgehead cannot be
denied. Even though the German troops were outnumbered as
much as 20 to 1, the defendant Rendulic saw the necessity of
controlling the area. By cleverly maneuvering his numerically
inferior troops and taking advantage of the uncertainties of
the situation in which the Italian commanders found themselves,
the defendant Rendulic was able to coerce a surrender of the
9th Italian Army by its commander, General Dalmazzo. Most
of the troops of the 9th Army complied with the terms of the
surrender. Among those which refused to comply was the Ber-
gamo Division of the 9th Army stationed at Split, a seaport on
the Adriatic Sea. The defendant was able to marshal forces
sufficient to capture the troops of the Bergamo Division. There-
after, the order to shoot the guilty officers of the Bergamo Divi-
sion after summary court martial proceedings was carried out.

It must be observed that Italy was not at war with Germany,
at least insofar as the Italian commanders were informed, and
that the Germans were the aggressors in seeking the disarma-
ment and surrender of the Italian forces. The Italian forces
which continued to resist met all the requirements of the Hague
Regulations as to belligerent status. They were not francs-
tireurs in any sense of the word. Assuming the correctness of
the position taken by the defendant that they became prisoners
of war of the Germans upon the signing of the surrender terms,
then the terms of the Geneva Convention of 1929, regulating
the treatment of prisoners of war were violated. No represen-
tative neutral power was notified nor was a 3-month period
allowed to elapse before the execution of the death sentences.
Other provisions of the Geneva Convention were also violated.
The coercion employed in securing the surrender, the unsettled
status of the Italians after their unconditional surrender to the
Allied forces, and the lack of a declaration of war by Germany

1293

upon Italy creates grave doubts whether the members of the
Bergamo Division became prisoners of war by virtue of the
surrender negotiated by General Dalmazzo. Adopting either
view advanced by the defense, the execution of the Italian officers
of the Bergamo Division was unlawful and wholly unjustified.
It represents another instance of the German practice of killing
as the exclusive remedy or redress for alleged wrongs. The
execution of these Italian officers after the tense military situation
had righted itself and the danger had passed cannot be described
as anything but an act of vengeance.

The defendant is charged also with passing on to troops sub-
ordinate to him the Fuehrer order of 6 June 1941, providing
that all commissars captured must be shot. Defendant admits
the receiving and passing on of this order in July 1941 when
he was in command of the 52d Infantry Division on the Russian
front. He admits that the legality and correctness of this order
was discussed and that it was generally considered illegal. He
testifies that he considered the order as a reprisal measure, the
purpose of which was unknown to him. But a mere assertion
of this nature, unaccompanied by evidence which might j astify
such an assumption, is not a defense. Such an assertion could be
made as an excuse for the issuance of any unlawful order or the
committing of any war crime, if it were available as a defense
ipso facto. We do not question that circumstances might arise
in such a case that would require a court to find that no criminal
intent existed but it must be based upon something more than
a bare assertion of the defendant, unsupported by facts and
circumstances upon which a reasonable person might act. The
order was clearly unlawful and so recognized by the defendant.
He contends, however, that no captured commissars were shot
by troops under his command. This is, of course, a mitigating
circumstance but it does not free him of the crime of knowingly
and intentionally passing on a criminal order.

The defendant is also charged with issuing, distributing, and
carrying into execution the Commando Order of 18 October
1942. The record discloses, however, that this order had been
issued and distributed prior to his assignment in the Balkans.
The Hitler order of 30 July 1944 ( 5S7-PS , Pros . Ex. U88) mak-
ing the Commando Order applicable to members of foreign mili-
tary missions, was not in existence during his assignment in the
Balkans. It is evident that defendant Rendulic did not issue
or pass on the Commando Order while commander in chief of
the 2d Panzer Army.

Proof of any acts connecting him with this criminal order has
not been produced. We hold, therefore, that the evidence is
insufficient to sustain a finding of guilt as to this charge.

1294

The defendant is charged with the wanton destruction of pri-
vate and public property in the province of Finmark, Norway,
during the retreat of the 20th Mountain Army commanded by
him. The defendant contends that military necessity required
that he do as he did in view of the military situation as it then
appeared to him. '

The evidence shows that in the spring of 1944, Finland had
attempted to negotiate a peace treaty with Russia without suc-
cess. This furnished a warning to Germany that Finland might
at any time remove itself as an ally of the Germans. In June
1944, the Russians commenced an offensive on the southern Fin-
nish frontier that produced a number of successes and depressed
Finnish morale. On 24 June 1944, the defendant Rendulic was
appointed commander in chief of the 20th Mountain Army in
Lapland. This army was committed from the Arctic Ocean south
to the middle of Finland along its eastern frontier. Two army
corps were stationed in central Finland and one on the coast of
the Arctic Ocean. The two groups were separated by 400 kilo-
meters of terrain that was impassable for all practicable pur-
poses.

On 3 September 1944, Finland negotiated a separate peace
with Russia and demanded that the German troops withdraw
from Finland within 14 days, a demand with which, it was im-
possible to comply. The result was that the two army corps to
the South were obliged to fight their way out of Finland. This
took 3 months time. The distance to the Norwegian border re-
quired about 1,000 kilometers of travel over very poor roads
at a very inopportune time of year. The Russians attacked
almost immediately and caused the Germans much trouble in
extricating these troops. The XIX Corps located on the Arctic
coast was also attacked in its position about 150 kilometers east
of Kirkenes, Norway. The retreat into Norway was successful
in that all three army corps with their transport and equipment
arrived there as planned. The difficulties were increased in
middle October when the four best mountain divisions were re-
called to Germany, thereby reducing the strength of the army by
approximately one-half.

The evidence shows that the Russians had very excellent troops,
in pursuit of the Germans. Two or three land routes were open
to them as well as landings by sea behind the German lines. The
defendant knew that ships were available to the Russians to
make these landings and that the land routes were available to
them. The information obtained concerning the intentions of
the Russians was limited. The extreme cold and the short days
made air reconnaissance almost impossible. It was with this

1295

situation confronting him that he carried out the “scorched
earth” policy in the Norwegian province of Finmark which pro-
vided the basis for this charge of the indictment.

The record shows that the Germans removed the population
from Finmark, at least all except those who evaded the measures
taken for their evacuation. The evidence does not indicate any
loss of life directly due to the evacuation. Villages were de-
stroyed. Isolated habitations met a similar fate. Bridges and
highways were blasted. Communication lines were destroyed.
Port installations were wrecked. A complete destruction of all
housing, communication, and transport facilities took place. This
was not only true along the coast and highways but in the in-
terior sections as well. The destruction was as complete as an
efficient army could do it. Three years after the completion of
the operation, the extent of the devastation was discernable to
the eye. While the Russians did not follow up the retreat to
the extent anticipated, there are physical evidences that they
were expected to do so. Gun emplacements, fox holes, and other
defense installations are still perceptible in the territory. In
other words there are mute evidences that an attack was antic-
ipated.

There is evidence in the record that there was no military
necessity for this destruction and devastation. An examination
of the facts in restrospect can well sustain this conclusion. But
we are obliged to judge the situation as it appeared to the de-
fendant at the time. If the facts were such as would justify
the action by the exercise of judgment, after giving consideration
to all the factors and existing possibilities, even though the con-
clusion reached may have been faulty, it cannot be said to be
criminal. After giving careful consideration to all the evidence
on the subject, we are convinced that the defendant cannot be
held criminally responsible although when viewed in retrospect,
the danger did not actually exist.

The Hague regulations prohibited:* “To destroy or seize the
enemy’s property, unless such destruction or seizure be impera-
tively demanded by the necessities of war.” The Hague Regula-
tions are mandatory provisions of international law. The pro-
hibitions therein contained, control, and are superior to military
necessities of the most urgent nature except where the Regula-
tions themselves specifically provide the contrary. The destruc-
tion of public and private property by retreating military forces
which would give aid and comfort to the enemy may constitute
a situation coming within the exceptions contained in Article

* Annex to Hague Convention No. IV, 1907, Article 23 g. (Treaties Governing Land Warfare,
United States Army Technical Manual 27-251, 1944, p. 25.)

1296

23g. We are not called upon to determine whether urgent mili-
tary necessity for the devastation and destruction in the province
of Finmark actually existed. We are concerned with the ques-
tion whether the defendant at the time of its occurrence acted
within the limits of honest judgment on the basis of the con-
ditions prevailing at the tirpe. The course of a military opera-
tion by the enemy is loaded with uncertainties, such as the
numerical strength of the enemy, the quality of his equipment,
his fighting spirit, the efficiency and daring of his commanders,
and the uncertainty of his intentions. These things when con-
sidered with his own military situation provided the facts or
want thereof which furnished the basis for the defendant’s
decision to carry out the “scorched earth” policy in Finmark as
a precautionary measure against an attack by superior forces.
It is our considered opinion that the conditions, as they appeared
to the defendant at the time were sufficient upon which he could
honestly conclude that urgent military necessity warranted the
decision made. This being true, the defendant may have erred
in the exercise of his judgment but he was guilty of no criminal
act. We find the defendant not guilty on this portion of the
charge.

The evidence establishes the guilt of the defendant Rendulic
on counts one, three, and four.

The defendant Dehner was assigned as the commander of the
LXIX Reserve Corps in the last days of August 1943. He held
this command until 15 March 1944. The corps was stationed
in northern Croatia and occupied about one-third of that coun-
try. The corps consisted of the 187th Reserve Division, the 173d
Reserve Division, and other units which were subordinate to it
for varying periods of time. The chief task of this corps was
to suppress the guerrilla bands operating in the territory and
particularly to guard the Zagreb-Belgrade railroad and the com-
munication lines in the assigned area. There was no coastline
to guard in the area of this corps.

The defendant is charged primarily with the unlawful killing
of hostages and reprisal prisoners, and with the wanton destruc-
tion of towns and villages contrary to international law. With
reference to the alleged unlawful killing of hostages and reprisal
prisoners, we point out that all the incidents set forth in the
portion of the opinion dealing with the defendant Rendulic were
committed by troops of the 173d and 187th Reserve Divisions
both of which were directly subordinated to this defendant. No
necessity exists to reiterate these incidents here. They will be
incorporated as a part of the case against the defendant Dehner

1297

by reference. Numerous occurrences took place in addition to the
foregoing.

In the daily report of the LXIX Reserve Corps to the 2d Panzer
Army for 5 November 1943, it is shown that the 173d Reserve
Division hanged 100 bandits for an attack on railroad installa-
tions and on certain police forces. This action from the language
used appears to have been a retaliation measure and not a shoot-
ing of francs-tireurs. That is was excessive as such is self evi-
dent. In a similar report dated 7 November 1943, it shows that
the 173d Reserve Division hanged 19 Communists at the scene
of a railroad explosion in reprisal for the act. On 8 November I
1943, this same division shot 21 hostages as a reprisal for rail-
road sabotage. A similar report shows that the 187th Reserve
Division on 21 December 1943, shot 25 people "suspected of
being bandits” and hostages as a reprisal for band attacks.

The reports made are hopelessly inadequate. The defendant
appears to have made no effort to require reports showing that
hostages and reprisal prisoners were shot in accordance with
international law. Killings by shooting and hanging took place
for railroad sabotage out of all proportion to the nature of the
offense. Retaliation was taken against special groups such as
Communists and bandit suspects. The population does not
appear to have been warned of the intention to kill hostages and
innocent members of the population in the event of the recur-
rence of offenses against the occupying power. The reprisals
appear to have been taken without regard to any possible con-
nection of the population with the offense committed. Hostages
were shot and reprisal prisoners killed when it was well known
that the offenses for which retaliations were ordered, were com-
mitted by organized bands having no connection whatever with
the immediate population. Innocent members of the population
were shot in reprisal for German losses sustained in combat
after the Fuehrer order of 18 August 1943, [NOKW-509, Pros .
Ex. 340] authorizing the treatment of band members as prisoners
of war. No more glaring injustice can be pointed to, it being a case
where the guilty escape and the innocent are put to death. Court
martial proceedings do not appear to have been held. The defendant
excuses his indifference to all these killings by saying that it
was the responsibility of the division commanders. We agree
that the divisional commanders are responsible for ordering the
commission of criminal acts. But the superior commander is
also responsible if he orders, permits, or acquiesces in such
criminal conduct. His duty and obligation is to prevent such
acts, or if they have been already executed, to take steps to
prevent their recurrence.

1298

The records show that this defendant had full knowledge of
these acts. On 24 December 1943, his corps headquarters called
attention to the fact that the order of the commander in chief of
the 2d Panzer Army of 15 September 1943, was in force. This
order was described in the portion of the opinion dealing with
the defendant Rendulic and will not be reiterated here. It
appears to us from an examination of the evidence that the
practice of killing hostages ' and reprisal prisoners got com-
pletely out of hand, legality was ignored, and arbitrary action
became the accepted policy. The defendant is criminally respon-
sible for permitting or tolerating such conduct on the part of
his subordinate commanders.

There is much that can be said, however, in mitigation of the
punishment to be assessed from the standpoint of the defendant.
Superior orders existed which directed the policy to be pursued
in dealing with the killing of hostages and reprisal prisoners.
Such superior orders were known by his subordinate commanders,
a situation that made it difficult for him to act. That the defend-
ant recognized certain injustices and irregularities and attempted
to correct them is evident from the record. As an example, in
an order of 19 December 1943, his corps headquarters stated
( NOKW-657 , Pros . Ex. 376) :

“Measures of the unit have repeatedly frustrated propaganda
for the enemy as planned by the unit leadership. It must not
happen that bandits who arrive at the unit with leaflets asking
them to desert and which should be valid as passes, are shot out
of hand. This makes any propaganda effort in this direction
nonsensical. Even our own confidential agents bringing im-
portant news from band territory and notwithstanding their
repeated assurances that they are in the service of the German
Armed Forces have been shot down To simplify matters', i.e.,
without any investigation."

The order goes on to say that under such circumstances it is
not surprising that notwithstanding the discomforts of living in
the woods in winter that the band nuisance increases steadily
and that the fight increases in severity and stubbornness. The
same order further states :

“It must be absolutely avoided that innocent people are
kept in hostage camps and that they possibly atone with their
lives for an affair with which they had no connection. With
the exception of case [paragraph] la hostages are to be
made responsible for the misdeeds of bands only in the
neighborhood nearest to their own villages. It is not per-
mitted, for instance, that hostages from Karlovci be used

1299

for retaliation measures in case a surprise attack by bands or
a demolition occurs near Ruma. ,,

The order further says:

“It is impossible to make use of hostages for the execution
of reprisal measures for the German soldiers killed in the
fight against bands. It would be contradictory on the one
hand to treat active members of bands, captured during battle,
as prisoners of war (Fuehrer Order, 18 August 1943), that is,
to let them live ; and on the other hand, to hang hostages from
the next hostage camp for our own losses in the fight against
bands.”

The foregoing approaches closely the correct course to be
pursued insofar as it bears upon the subject of hostages and
reprisals. It indicates an attempt to correctly apply the rules
of warfare as they apply to guerrilla warfare in occupied terri-
tory. Such examples of conscientious efforts to comply with
correct procedure warrant mitigation of the punishment.

The defendant is charged, also, with responsibility for the
destruction of numerous towns and villages by troops subordinate
to him without military necessity existing for their so doing.
The record establishes that on 16 October 1943 the 187th Reserve
Division arrested the majority of the populations of the villages
of Paklonica and Vocarica as hostages and then burned down
the villages. The record further shows that on 24 September
1943 the 173d Reserve Division burned down the villages of
Grgeteg and Bukavac. It shows also that on 26 November 1943
[NOKW-04.9, Pros . Ex. 356 ] the village of Grgurevci was burned
down by troops of the 173d Reserve Division in reprisal for an
attack on police from the village. Other cases of a similar character
are shown by the record. Under some circumstances, the destruc-
tion of villages is a legitimate reprisal measure. The reports of
these incidents are very fragmentary and give little or no details
surrounding the actions. They do indicate that the acts were taken
as reprisal measures and not from military necessity as that term
is ordinarily used. We are obliged to say that the evidence is
not sufficient to sustain a finding that these destructions were
in violation of the laws of war.

We find the defendant guilty under count one of the indict-
ment.

The defendant von Leyser was appointed to command the XXI
Mountain Corps on 1 August 1944, and continued in the position
until April 1945. Immediately previous thereto he had been in
command of the XV Mountain Corps, a position he had held
since 1 November 1943. Other assignments involved in the

1300

present case are in regard to his command of the 269th Infantry
Division in Russia in 1941 and his command of the XXVI Corps
in Russia in 1942.

The XXI Corps was committed in Albania and assigned the
task of guarding the coast against Allied invasion and the sup-
pression of the resistance movement. Directly subordinate to
him as commander of the XX^I Corps were the 297th Infantry
Division, the 100th Light Division, and other units assigned for
particular operations. The XV Corps was committed in Croatia
and was likewise assigned the task of guarding the coast and
suppressing band activities. Directly subordinate to the corps
were the 114th Light Division which was subsequently replaced
with the 264th Infantry Division, the 873d Infantry Division,
and the 392d Infantry Division. Other units appear to have
been subordinated to the corps for specific operations.

The defendant is charged with responsibility for the unlawful
killing of hostages and reprisal prisoners, with ordering and
carrying out the evacuation of the male population of Croatian
towns for deportation to Germany for forced labor, and the kill-
ing of commissars pursuant to the Commissar Order of 6 June
1941.

The reprisal practice as carried out in this corps area and the
alleged deportation of inhabitants for slave labor is so inter-
woven with the powers of the alleged independent state of Croatia
that its status and relationship to the German armed forces must
be examined. Prior to the invasion of Yugoslavia by Germany
on 6 April 1941, Croatia was a part of the sovereign state of
Yugoslavia and recognized as such by the nations of the world.
Immediately after the occupation and on 10 April 1941, Croatia
was proclaimed an independent state and formally recognized
as such by Germany on 15 April 1941. In setting up the Croa-
tian Government, the Germans, instead of employing the serv-
ices of the Farmers’ Party which was predominant in the coun-
try, established an administration with Dr. Ante Pavelic at its
head. Dr. Pavelic was brought in from Italy along with others
of his group and established as the governmental head of the
state of Croatia even though his group represented only an esti-
mated 5 percent of the population of the country. This govern-
ment, on 15 June 1941, joined the Three Power Pact and, on 25
November 1941, joined the Anti-Comintern Pact. On 2 July
1941, Croatia entered the war actively against the Soviet Union
and on 14 December 1941, against the Allies. The military
attache became the German Plenipotentiary General in Croatia
and was subordinated as such to the chief of the High Com-
mand of the Armed Forces. The territorial boundaries of the

1301

new Croatia were arbitrarily established and included areas
that were occupied by Serbians who were confirmed enemies
of the Croats.

The Croatian Government, thus established, proceeded to or-
ganize a national army, the troops of which are referred to in
the record as Domobrans. Certain Ustasha units were also
trained and used. The Ustasha in Croatia was a political party
similar to the Nazi Party of Germany. Similar to the Waffen
SS, divisions of the Ustasha were trained and used. In addition,
by an alleged agreement between Germany and Croatia, the
Croatian Government conscripted men from its population for
compulsory labor and military service. Many of these men were
used in German organized Croat divisions and became a part of
the German Armed Forces under the command of German officers.

It is further shown by the evidence that all matters of liaison
were handled through the German Plenipotentiary General. It
is evident that requests of the Germans were invariably acceded
to by the Croatian Government. It is quite evident that the
answers to such requests were dictated by the German Plenipo-
tentiary General. Whatever the form or the name given, the
Croatian Government during the German war time occupation
was a satellite under the control of the occupying power. It dis-
solved as quickly after the withdrawal of the Germans as it had
arisen upon their occupation. Under such circumstances, the
acts of the Croatian Government were the acts of the occupa-
tion power. Logic and reason dictate that the occupant could
not lawfully do indirectly that which it could not do directly. The
true facts must control irrespective of the form with which they
may have been camouflaged. Even international law will cut
through form to find the facts to which its rules will be applied.
The conclusion reached is in accord with previous pronounce-
ments of international law that an occupying power is not the
sovereign power although it is entitled to perform some acts of
sovereignty. The Croatian Government could exist only at the
sufferance of the occupant. During the occupation, the German
military government was supreme or its status as a military
occupant of a belligerent enemy nation did not exist. Other
than the rights of occupation conferred by international law, no
lawful authority could be exercised by the Germans. Hence,
they had no legal right to create an independent sovereign state
during the progress of the war. They could set up such a provi-
sional government as was necessary to accomplish the purposes
of the occupation but further than that they could not legally
go. We are of the view that Croatia was at all times here in-
volved an occupied country and that all acts performed by it

1302

were those for which the occupying power was responsible. With
the expression of these views, we pass to the consideration of the
charges made against the defendant von Leyser.

There is evidence in the record that innocent members of the
population were killed in reprisal for attacks on troops and acts
of sabotage committed by unknown persons by troops subordinate
to the defendant von Leyser. That the defendant knew of many
such killings, he admits. He denies that he ever issued an order
to carry out any specific reprisal measure. He contends that this
was the responsibility of divisional commanders in conjunction
with Croatian Government authorities. The record discloses,
however, that on 10 August 1944 the defendant issued an order
containing the following:

“In case of repeated attacks in a certain road sector, Com-
munist hostages are to be taken from the villages of the imme-
diate vicinity, who are to be sentenced in case of new attacks.
A connection between these Communists and the bandits may
be assumed to exist in every case.”

This order is, of course, not lawful. Reprisals taken against a
certain race, class, or group irrespective of the circumstances of
each case sounds more like vengeance than an attempt to deter
further criminal acts by the population. An assumption of guilt
on the part of a particular race, class, or group of people in all
cases also contravenes established rules. This is a matter which
a judicial proceeding should determine from available evidence.
We must assert again, in view of the defendant’s statement that
the responsibility for the taking of reprisal measures rested with
the divisional commanders and the Croatian Government, that
a corps commander must be held responsible for the acts of his
subordinate commanders in carrying out his orders and for acts
which the corps commander knew or ought to have known about.

The evidence concerning the killing of hostages and reprisal
prisoners within the corps area is so fragmentary that we cannot
say that the evidence is sufficient to support a finding that the
measures taken were unlawful. The killing of hostages and
reprisal prisoners is entirely lawful under certain circumstances.
The evidence does not satisfactorily show in what respect, if
any, the law was violated. This is a burden cast upon the prose-
cution which it has failed to sustain.

The more serious charge is that pertaining to the evacuation of
large areas within the corps command for the purpose of con-
scripting the physically fit into the Croatian military units and
of conscripting others for compulsory labor service.

1303

On 8 March 1944, the XV Mountain Corps reported to the 2d
Panzer Army in part as follows: “Operation ‘Bergwiese’ ter-
minated. Final report not yet available. Another 74 able-bodied
men taken into custody.” On 9 March 1944, the same division
reported 382 able-bodied men in custody from the same opera-
tion. On 20 March 1944, the XV Mountain Corps reported in
part as follows : “Operation ‘Illusion’ carried out after refusal by
German Navy. No contact with enemy, 100 able-bodied persons
brought to Fiume.” On 21 March 1844, the XV Mountain Corps
reported as follows : “Intention : Harehunt code name ‘Lagerle-
ben’ (taking into custody of 200 compulsory recruits 6 kilometers
east-southeast of Brinje).” This whole question can be disposed
of by a consideration of the operation “Panther.”

Shortly after taking command of the XV Corps, the defendant
formulated a plan for the evacuation of the male population be-
tween the ages of 15 and 55 from the area between Una and
Korana. This territory was supposed to contain about 7,000 to
8,000 men who were partly equipped with arms procured from
the Italians. The area had been under the temporary control
of the bands to such an extent that the Croat Government had
complained of its inability to conscript men for military service
from the area. It was planned to crush the bands and evacuate
the men and turn them over to the Croatian Government for use
as soldiers and compulsory labor. The operation was designated
as operation “Panther” and is so carried in the German army
reports. On 6 December 1943, the 2d Panzer Army approved
operation “Panther.” The order of approval provided that the
estimated 6,000 persons fit for military service should be held in
camps at Sisak and Karlovac.

The evacuation of persons fit for military service was to be
known by the code name “Silberstreifen” (silver stripes). On
2 December 1943, the 2d Panzer Army ordered the operation to
commence on 6 December 1943. The last sentence of the order
states: “Sending the evacuated population fit for military serv-
ice to Germany for labor service is considered expedient.”

The operation was carried out, but only 96 men fit for military
service were captured. It is evident that the inhabitants had been
warned before the operation was commenced and had left to
escape capture. The defendant attempts to justify his action
by asserting that the primary purpose of the operation “Pan-
ther” was the suppression of the bands, that the operation was
purely a tactical one so far as he was concerned, and that the
disposition of the captured population fit for military service
was for the decision of the Croatian Government and not his
concern.

1304

We point out that the Croatian Government was a satellite
government and whatever was done by them was done for the Ger-
mans. The captured men fit for military service were turned over
to the Croat administration and were undoubtedly conscripted into
the Domobrans, the Waffen Ustasha, the Croat units of the Wehr-
macht, or shipped to Germany for compulsory labor just as the
defendant well knew that they would be. The occupation forces
have no authority to conscript military forces from the inhabi-
tants of occupied territory. They cannot do it directly, nor can
they do it indirectly. When the defendant as commanding gen-
eral of the corps area participated in such an activity, he did so
in violation of international law. The result is identical if these
captured inhabitants were sent to Germany for compulsory labor
service. Such action is also plainly prohibited by international
law as the evidence shows. See Articles 6, 23, 46 of the Hague
Regulations. We find the defendant von Leyser guilty on this
charge.

The defendant is also charged with issuing the Commissar
Order of 6 June 1941 and causing the same to be carried out
while he was in command of the 269th Infantry Division in
Russia in 1941. The record shows a report of the 269th Infantry
Division under date of 28 September 1941 wherein it is stated:
“Special occurrences — one female commissar shot. One woman
who was in contact with partisans, likewise shot.” Under date
of 20 November 1941, this same division reports as follows:
“Two Russian prisoners of the 1st Battery were shot upon the
order of the battalion commander. These were one commissar
and one Russian high ranking officer.” On 9 July 1941, the
269th Infantry Division reported to the XLI Infantry Corps
to which it was subordinated as follows: “34 Politruks (com-
missars) liquidated.”

This evidence clearly shows that the 269th Infantry Division,
commanded by the defendant von Leyser killed commissars pur-
suant to the Commissar Order. This was a criminal order and
all killings committed pursuant to it were likewise criminal. We
find the defendant guilty on this charge.

We find the defendant von Leyser guilty on counts three and
four.

The defendant Felmy had two assignments in Greece. He
was appointed Commander Southern Greece about the middle of
June 1941, and continued in the position until August 1942.
During this period he had only three battalions of security and
police troops subordinate to him. On 10 May 1943, the defendant
became commander of the LXVIII Corps and continued in that
position until the corps withdrew from Greece, an operation

1305

which was completed on 22 October 1944. In addition thereto
on 9 September 1943, he assumed command of Army Group
Southern Greece. He had subordinate to him the 1st Panzer
Division, 117th Light Division, and a number of fortress bat-
talions. Until the collapse of Italy, two Italian divisions were
subordinate to him.

The defendant is charged with responsibility for the unlawful
killing of innocent members of the population and the wanton
destruction of villages and towns without military necessity exist-
ing therefor.

The defendant admits ordering reprisal measures but denies
that they were unlawful. A brief review of some of these acts
for which the defendant is responsible is therefore necessary.
To begin with the defendant admits receiving the basic order
of 16 September 1941 relative to reprisal measures up to 100
to 1 which has been often referred to in this opinion. He ale
received the Keitel order of 28 September 1941, relative to the
taking of hostages from all sections of the population >> nich has
likewise been quoted herein. He also received and passed on the
order of General Loehr, Commander in Chief Southeast, dated
10 August 1943, which states in part ( NOKW-155 , Pros. Ex.
306) :

“In territories infested by the bandits, in which surprise
attacks have been carried out, the arrest of hostages from all
strata of the population remains a successful means of intimi-
dation. Furthermore, it may be necessary to seize the entire
male population, insofar as it does not have to be shot or
hung on account of participation in or support of the bandits,
and insofar as it is incapable of work, and bring it to the
prisoner collecting points for further transport into the
Reich. Surprise attacks on German soldiers and damage to
German property must be retaliated in every case with shoot-
ing or hanging of hostages, destruction of the surrounding
localities, etc. Only then will the population announce to the
German offices the collections of the bandits, in order to re-
main protected from reprisal measures.”

The defendant also received and passed on the order regard-
ing reprisal measures issued by General Loehr, deputizing for
Field Marshal von Weichs as Commander in Chief Southeast,
under date of 22 December 1943, an order which has been pre-
viously quoted in this opinion. It says in part ( NOKW-172 ,
Pros. Ex. 379) :

“Reprisal quotas are not fixed. The orders previously de-
creed concerning them are to be rescinded. The extent of

1306

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ts

the reprisal measures is to be established in advance in each
individual case. * * * The procedure of carrying out reprisal
measures after a surprise attack or an act of sabotage at ran-
dom on persons and dwellings in the vicinity, close to the scene
of the deed, shakes the confidence in the justice of the occupy-
ing power and also drives the loyal part of the population into
the woods. This form of execution of reprisal measures is
accordingly forbidden. If, however, the investigation on the
spot reveals concealed collaboration or a conscientiously pas-
sive attitude of certain persons concerning the perpetrators,
then these persons above all are to be shot as bandit helpers
and their dwellings destroyed * * * . Such persons are co-
responsible first of all who recognize communism.”

The records show the following actions by troops subordinate
to this defendant: On 9 September 1943, during mopping up
operations of Levadeia “as reprisal measures for one murdered
German soldier, 10 Greeks hanged.” On 7 November 1943, the
LXVIII Corps reports: “18 Communists were shot in Tripolis
as reprisal for railroad sabotage committed lately.” On 29 No-
vember 1943, the LXVIII Corps reports: “As reprisal for band
attack on Tripolis-Sparta road, 100 hostages shot at the place
of attack.” On 5 December 1943, the LXVIII Corps reported “50
hostages were shot in Aighion for attacks committed lately”, and
on 6 December 1943, “for attack on railroad strong hold east of
Tripolis, 50 hostages were hanged.” On 6 December 1943, opera-
tion “Kalavritha” was commenced. In reprisal for the killing
of 78 German soldiers, the 117th Division under the command
of General von Le Suire carried out this attack. More than 25
villages were destroyed, and 696 Greeks are admitted to have
been shot in reprisal. There is evidence of an eyewitness that
approximately 1,300 Greeks were killed in reprisal. The defend-
ant admits that this reprisal measure was excessive and says
that he orally reprimanded General von Le Suire for the severity
of this reprisal measure. No reprimand or complaint as to Le
Suire’s conduct appears in the documentary evidence before the
Tribunal.

The diary of the LXVII T Corps reports the following reprisal
measures: on 17 January 1944, “In retaliation for an attack on
one officer in the Rhizaes area, 20 Communists executed” ; on 22
April 1944, “In Tripolis 12 well known Communists were shot
as a retaliation measure for the murder of a rural police officer” ;
on 23 February 1944, “Shooting of 200 hostages from the Tripolis
hostage camp at the place of attack.” This reprisal was for two
truck convoy attacks resulting in 33 German dead and nine
wounded. On 11 March 1944, for an attack on an armed German

1307

893964 — 61 — 86

convoy, General Le Suire asked and was granted permission by
this defendant to shoot “200 hostages (Communists) to be taken
out of all hostage camps.” Defendant contends that only 141
hostages were actually shot. The extent of the reprisals taken
in the area of the LXVIII Corps is shown by the testimony of
the defendant who says that between July and December 1943,
91 acts of sabotage occurred and 60 reprisals taken, and from
January to June 1944 there was a monthly average of 55 acts
of sabotage and engagements with bands.

It hardly seems necessary for us to point out that many of
these reprisal killings were excessive and many were unlawful
because there was no connection between the inhabitants shot
and the offense committed. Reprisals were taken against special
groups, such as “Communists” and “bandit suspects” without
any relationship to the offense being established. The Kalavritha
Operation can only be described as plain murder and a wanton
destruction of property. The assertion of the defendant that he
orally reprimanded General von Le Suire for the severity of this
operation does not appear too convincing in view of the recom-
mendations later made by defendant for the advancement of Le
Suire to a higher command. Reprisal measures were carried out
in the corps area without rhyme or reason. They became a part
of the tactical campaign for the suppression of the bands in the
first instance rather than as a last resort. It is plain that deter-
ring the local population at the scene of the offense was not the
primary objective. Reprisal prisoners were taken from hostage
camps generally and at points distant from the place where the
offenses occurred. It was more the case of an eye for an eye than
an honest attempt to restrain the population by a use of hostage
and reprisal measures as a last resort.

On 5 April 1944, the notorious “blood bath” at Klissura oc-
curred. {NOKW-^69, Pros. Ex. U82.)* The facts are: On the
date in question an engagement between bands and German
troops occurred about 2Vs> kilometers outside the village of Klis-
sura. After the retreat of the bands, the troops moved into
the village and began searching for evidence of band support.
None was found. Later in the afternoon, units of the 7th SS
Panzer Grenadier Regiment entered the village and began almost
immediately to kill the inhabitants. At least 215 persons, and
undoubtedly more, were killed. Among these killed were 9
children less than 1 year old, 6 between 1 and 2 years of age,
8 between 2 and 3 years, 11 between 3 and 4 years, and 4 be-
tween 4 and 5 years. There were 72 massacred who were less

* Part of this document ia reproduced in section VB.

than 15 years of age, and 7 people in excess of 80 years. No
justification existed for this outrage. It was plain murder.

On 10 June 1944, troops of this same regiment carried out a
reprisal measure against the inhabitants of the village of Disto-
mon. (NOKW-A67, Pros. Ex. U8U.) It seems that bands were
first engaged near Stiri, 5 kilometers southeast of Distomon.
After the defeat of the bands, the troops returned to Distomon
and shot approximately 300 of the population, including men,
women, and children. It also was plain calculated murder.

A complaint was voiced by the Plenipotentiary of the Foreign
Office and an investigation demanded. The defendant Felmy
was charged with the duty of having the investigation made. He
denies that this regiment was subordinate to him or that he had
any disciplinary control over it. For the purpose of this discus-
sion, we will accept his statement as true even though the order
to investigate and report through Wehrmacht channels indicates
the contrary. The point that is material here is that the inves-
tigation was made, the battle report of the commanding officer
was found to be false, and the action of the regimental com-
mander found to be in excess of existing orders. Upon the
discovery of these facts the defendant Felmy recommended that
disciplinary action (the method of trying minor offenses) be
taken against the officer in charge in consideration of the sacri-
fices of the regiment in the combat area at the time. The de-
fendant testified that he never knew what punishment, if any,
was assessed against this guilty officer. He seems to have had
no interest in bringing the guilty officer to justice. Two of the
most vicious massacres of helpless men, women, and children
appear to have met with complete indifference on his part. The
falsification of the battle report by the regimental commander
seems to have been deemed the major offense.

War at its best is a business but under no circumstances can
cold-blooded mass murder such as these two cases establish be
considered as related remotely even to the exigencies of war.
The defendant’s attitude toward the innocent population is re-
flected in his indifference to these unjustified and brutal mur-
ders which took place within the area of his command. It is
a matter that goes to the question of the defendant’s character,
intent, and purpose in carrying out the acts for which he is
charged. The responsibility of the defendant for the killing
of innocent members of the population by the exercise of un-
lawful hostage and reprisal practices is clearly established. We
find the defendant Felmy guilty on counts one and two.

The defendant Lanz was appointed to command the XXII
Mountain Corps on 25 August 1943 and actually assumed the

1309

position on 9 September 1943. The corps command was, gen-
erally speaking, the Epirus area of Greece. This consisted of j
the area between the Gulf of Corinth and Albania lying west i
of the Pindus Mountains. The corps headquarters was in Ioan-
nina. The defendant is charged with the responsibility for kill-
ing hostages and reprisal prisoners in violation of international
law and with the unlawful killing of Italian officers after the
Italian capitulation.

A brief summarization of the evidence against the defendant
is required. On 13 September 1943, General Stettner, com-
mander of the 1st Mountain Division, a unit subordinate to the
defendant and whose headquarters was at the time also in
Ioannina, issued an order in part as follows (NO KW-110U, Pros .
Ex. J^51 ) : “In order to oppose energetically the continued raids
on convoys and members of the Wehrmacht, it is ordered that
from 20 September 1943 onward for every German soldier
wounded or killed by insurgents or civilians, 10 Greeks from
all classes of the population are to be shot to death. This order
must be carried out consistently in order to achieve a deterrent
effect.” On 29 September 1943, the XXII Corps reported: “Tele-
phone sabotage in the area of Arta. Poles sawed off at two
places. Thirty male civilian suspects arrested and shot.” On
3 October 1943, the defendant issued an order reading in part
as follows: “On account of the repeated cable sabotage in the
area of Arta 30 distinguished citizens (Greeks) from Arta and
10 distinguished citizens (Greeks) from Filipias are to be
arrested and kept as hostages. The population is to be notified
that for every further cable sabotage 10 of these 40 hostages
will be shot to death.” The defendant denies that any of these
hostages were shot and there is no evidence in the record to
the contrary. On 4 October 1943, the 1st Mountain Division
reported to the XXII Corps as follows : “Mopping up operations
Eisl continue beyond Alomotros. Villages destroyed as reprisal
measure. All civilians shot to death.” On 18 October 1943,
the 1st Mountain Division reported to the XXII Corps as follows:
“Shot to death: Paramythia — reprisal measure for 6 murdered
German soldiers, 58. Thereakision — reprisal measure for murder
of Lieutenant Colonel Salminger, 14. Arta, Klissura — Suspicious
elements near the localities where attacks had occurred (about),

30. Ioannina City — 4.” On 25 October 1943, the 1st Mountain
Division issued a special directive to its subordinate units which
stated in part: “If a member of the German Wehrmacht is
killed by either attack or murder in a territory considered paci-
fied, 50 Greeks (male) are to be shot for one murdered German.

* * * The decision regarding executions for losses in band combat

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1310

is made by the competent troop commander. Here also the
ratio is 1 :50. The prerequisite for the order of execution is
indubitable proof that the population of a village has partici-
pated in hostile action against the German armed forces. In
addition, the villages are to be destroyed.” This order super-
sedes that of 13 September 1943. Numerous killings of hostages
and reprisal prisoners, in addition to those enumerated, appear
in the record. There are reports to the effect that “all the in-
habitants” of named villages and “all men capable of bearing
arms” were shot to death. Persons designated as “civilians”
were shot on numerous occasions.

The orders for the taking of reprisal measures were clearly
unlawful. An order to shoot 50 Greeks for each German killed
regardless of circumstances meets the legal objections herein-
before stated in this opinion. Instead of reprisals against
innocent inhabitants being taken as a last resort, they were
more often taken in the first instance. Reprisal killings were
often carried out against the inmates of hostage camps and not
against the population having some relationship with the crime
committed. Attacks by armed bands having no connection with
the local population were avenged by killing innocent inhabi-
tants who had no possible association with the guilty. Many
villages were destroyed and the civilian inhabitants shot without
any logical reason at all except to wreak vengeance upon the
population generally. According to the reports in evidence, court
martial proceedings were not held. The killings were had on
the order of the competent field commander, the evidence show-
ing that battalion commanders sometimes gave such orders.
The defendant says that as a tactical commander he was too
busy to give attention to the matter of reprisals. This is a very
lame excuse. The unlawful killing of innocent people is a
matter that demands prompt and efficient handling by the highest
officer of any army. This defendant, with full knowledge of
what was going on, did absolutely nothing about it. Nowhere
does an order appear which has for its purpose the bringing of
the hostage and reprisal practice within the rules of war. The
defendant does not even contend that he did. As commander of
the XXII Corps it was his duty to act and when he failed to
so do and permitted these inhumane and unlawful killings to
continue, he is criminally responsible.

The defendant Lanz is also charged as commander of the
XXII Mountain Corps with having ordered or permitted the
unlawful execution of Italian officers and soldiers of the sur-
rendered Italian army. He is also specifically charged with
ordering troops under his command to execute the captured

1311

Italian General Gandin and all officers of his staff. The general
situation regarding the collapse of Italy and the surrender of
its armies has been set forth in the portion of the opinion deal-
ing with the defendant Rendulic and it will not be repeated
here except as necessity requires.

The record discloses that the defendant Lanz knew when he
assumed command of the XXII Mountain Corps that Field Mar-
shal Badoglio had succeeded Mussolini as head of the Italian
Government and Commander in Chief of the Italian Army.
On 8 September 1943, he heard of the armistice which the
Italians had signed with the Allies. On the same day, due to
the absence of senior officers from Athens, General Alexander
Loehr, commander in chief of Army Group E, commissioned the
defendant Lanz to negotiate with General Vecchiarelli, the
commander in chief of the 11th Italian Army. After much
negotiating, General Vecchiarelli surrendered the 11th Army
to the Germans on 9 September 1943. The surrender terms
were carried out during the following 14 days, without difficulty
insofar as troops stationed on the Greek mainland were con-
cerned. On the islands of Corfu and Cephalonia, however,
difficulties arose. These two islands were occupied by one
Italian division under the command of General Gandin. The
defendant Lanz as commanding general of the XXII Corps de-
manded that General Gandin surrender his troops and the demand
was refused even though General Vecchiarelli had directed him
to do so. General Gandin vacillated, contending that his orders
were not clear and that he had no right to surrender the division.
The situation resulted in fighting between the German and
Italian troops on the island of Cephalonia and the eventual sur-
render of the Italian forces, including General Gandin and his
staff, on 21 September 1943.

During this stage of the proceedings, a Fuehrer order arrived
directing that the 6,000 or 7,000 Italians of General Gandin’s
division were to be shot for mutiny. The defendant Lanz re-
fused to carry out this order for the reason that it was neither
feasible nor lawful to do so. The Fuehrer order was then modi-
fied providing only that the officers were to be shot for mutiny.
The defendant objected to the shooting of all officers and advo-
cated that the order apply only to the guilty. The evidence
indicates that the defendant Lanz ordered the German com-
mandant of the islands to determine the guilty officers by court
martial proceedings. This was done and on 24 September 1943,
General Gandin and his staff officers were shot.

A similar situation developed on the island of Corfu. Fighting
ensued, the Italians surrendered, and the officers shot after a sum-

1312

mary court martial. The record shows that a large number of
Italian officers were shot in this manner. One instance shows
that on 5 October 1943, 58 Italian officers were shot by troops
subordinate to the XXII Corps.

The killing of these Italian officers was clearly unlawful. The
evidence of the defendant shows that he believed that their killing
was unlawful. While his protests to Army Group E, based on the
illegality of the Fuehrer order, were successful in reducing the
number of Italians to be subjected to the unlawful order, the fact
remains that the killing of the reduced number was just as much
a criminal act. That he gave the order to the commandant of
Cepholonia to execute the guilty officers only, he readily admits.
The Italian soldiers were not francs-tireurs. They were still
allies of Germany, insofar as their commanding officers then knew,
although they had notice that an armistice had been signed with
the Allied Powers. If they were prisoners of war by virtue of the
surrender of the 11th Italian Army by General Vecchiarelli, it is
clear that they were entitled to the protection of the Geneva Con-
vention, 1929, regulating the treatment to be afforded prisoners
of war. This was not done in any material respect. The reason-
ing set forth on the same subject in this opinion as it pertains
to the defendant Rendulic applies here and is adopted by refer-
ence to the present situation. We are obliged to hold that the
killing of the Italian officers was a war crime for which the
defendant is responsible.

We find the defendant Lanz guilty on counts one and three.

The defendant Speidel assumed the position of Military Com-
mander Southern Greece in early October 1942, and remained in
the position until September 1943. From September 1943, until
May 1944, he occupied the position of Military Commander
Greece. His first assignment extended to a portion of the harbor
Pyraeus and the adjoining coastal strip, a small section northeast
of Athens and the Islands Salamis and Aegina. The balance of
the area, including Athens, was controlled by the Italians. Under
the second assignment his authority extended over the whole of
Greece although such authority was limited to certain functions.
He had no tactical or operational tasks in this position, they
being in the hands of Army Group E.

As Military Commander Southern Greece, his chief tasks were
the maintenance of public peace and order within the area occu-
pied by German forces, the security of German troops and in-
stallations, and jurisdiction over crimes committed against the
Germans by the population. As Military Commander Greece, his
principal tasks were the maintenance of peace and order, the
administration of the judicial authority over the population as

1313

to crimes and offenses committed against the Germans and their
military installations and the handling of negotiations with the
Greek Government. As in the case of his previous assignment,
all tactical and operational matters were in the hands of Army
Group E in Salonika.

Subordinated to the defendant were 7 subarea headquarters
[administrative area headquarters] units. On and after 22 De-
cember 1943, reprisal measures could be ordered only by divisional
commanders after agreement with the competent subarea head-
quarters. This order, promulgated by General Loehr as Acting
Commander in Chief Southeast, provided in part: “The revenge
for attacks which are directed against the unit and its installation
may be ordered only by a German commander with the disciplin-
ary authority to punish of at least a division commander in
accord with the competent administrative subarea headquarters.
If an agreement is not reached, the competent territorial com-
mander is to decide. Reprisal measures for losses in the air
corps, navy, police, and the OT [Organization Todt] are to be
ordered principally by the territorial commanders.”

That the Military Commander Greece could control the reprisal
and hostage practice through the various subarea headquarters
which were subordinate to him cannot be questioned. This con-
clusion is borne out by the testimony of the defendant and
charts prepared by him. It is plainly established that all adminis-
trative subarea headquarters [administrative area headquarters]
and local headquarters of his area of command were subordinated
to the Military Commander Greece by the Keitel order of 21
December 1943.

The defendant contends that many of the acts charged against
him were committed by or under the direction of the Higher SS
and Police Leader, General Schimana. Whether General Schimana
was subordinate to the Military Commander Greece insofar as the
ordering of reprisal and hostage measures was concerned is
directly disputed. We are convinced that the record shows that
he was. In this respect the record quite conclusively shows that
General Schimana was directly subordinate to Himmler as to
matters of discipline, promotions, and matters of similar import.
Ordinarily, Himmler insisted that all SS units remain wholly
subordinate to him, a matter of which he was very jealous. But
in the present instance, the matter is controlled by regulations
issued by Fuehrer headquarters under date of 7 September 1943
which in part says [NOKW-1U38, Pros. Ex. 41-9] :

“By agreement with the Chief of OKW, the Reich Fuehrer SS

and Chief of the German Police appoints a Senior [Higher] SS

1314

and Police Leader for the area of Military Commander Greece.
The Senior SS and Police Leader is an office of the Reich
Fuehrer SS and Chief of the German Police, which is sub-
ordinate to Military Commander Greece for the period of its
employment in Greece. * * * The military commander is
authorized to issue directives to the Senior SS and Police
Leader which are necessary to avoid interference with Wehr-
macht operations and duties. They take precedence over any
other directives. The Senior SS and Police Leader will receive
policies and directives for the execution of these duties from
the Reich Fuehrer SS and Chief of the German Police. He
will carry them out independently, currently, and opportunely,
informing the Military Commander Greece in as far as he
does not receive any restrictive directives from the latter.”

The defendant admits that General Schimana considered him-
self subordinate to the Military Commander Greece as to the
ordering and carrying out of hostages and reprisal killings. That
the Senior SS and Police Leader was a member of the staff of
Military Commander Greece is shown by the Keitel order of
21 December 1943. The evidence is clear that the defendant is
responsible for the execution of these measures except when
they were taken during tactical operations on which occasions,
of course, the responsibility rests with the tactical superior.

A review of some of the hostage and reprisal measures taken
within area of the defendant’s command and for which respons-
ibility attaches, will be necessary. On 3 December 1943, the
following report was made: “Nineteen Communist reprisal pris-
oners shot, as revenge for the murder and wounding of Greek
police, by the Senior SS and Police Leader in Athens.” On 31
December 1943, the defendant reported: “In December on the
Peloponnesus 758 people were shot to death, including reprisal
operation ‘Kalavritha’. In the remaining areas hostages were
seized, and to a small extent executions have taken place.” On
9 January 1944, it was reported: “By (order of) Senior SS and
Police Leader, 30 Communists were shot to death in reprisal for
the murder of Greek policeman and for 36 attacks.” On 10 Janu-
ary 1944, the Military Commander Greece reported: “50 Com-
munists shot as reprisal measure for murdering two German
police.” On 13 March 1944, it was reported: “On the highway
Sparta-Tripolis, truck convoy attacked. Eighteen Wehrmacht
members dead, 25 heavily wounded, 19 slightly wounded, and
6 Greeks wounded. As reprisal, state of emergency for southern
Peloponnesus. Shooting of 200 Communist hostages.” On 18
March 1944, the defendant reported in part as follows: “Tend-

1315

ency to strikes and partial strikes at the railroad and several
plants at the beginning of March were suppressed by energetic
military measures; 50 Communists were shot immediately while
others who were arrested are awaiting their sentence.” While
the defendant was absent from his command for almost 2 months
prior to 17 March 1944, he appears to have known of and ap-
proved the action taken by his deputy as shown by the foregoing
report. On 22 March 1944, the Military Commander Greece
reported: “On the Peloponnesus, five Greeks hanged in reprisal
for attack on railroad.” On 22 March 1944, the defendant re-
ported : “administrative subarea headquarters [administrative
area headquarters] Corinth report 52 hostages in Tripolis and 44
hostages in Sparta were shot as reprisal measure on 21 March.”
On 1 April 1944, defendant reported: “Up to now — Wehrmacht
one dead, 14 wounded. Tracks blocked only for a short while.
The execution of 70 Greeks at the locality of the incident has been
ordered.” On 2 April 1944, defendant reported: “65 Communists
in reprisal for railroad sabotage, 10 south La Rissa shot to
death at the scene of the incident.” On 6 April 1944, defendant
reports: “In Verria [Veroia] (60 southeast West Solonika) . Fire
attack by bandits during roll call of the battalion. Losses of our
own — four dead, eleven wounded of which eight are heavily
wounded. One hundred and fifty people suspected of belonging
to bands shot in Verria as reprisal measures.” On 8 April 1944,
the defendant reported : “50 Communists shot to death for attack
on German soldiers (three dead) North Athens.” On 25 April
1944, the defendant reported: “In Tripoli, 12 known Communists
shot in reprisal for a murdered Gendarmerie officer.” On 26
April 1944, the defendant reported : “Officers of the commander of
the Ordnungspolizei [order police] attacked by about 70 bandits
while on duty trip on the road Arachova-Amphissa (15 west
Levadeia). Major Schulz and Major Krueger dead, Captain
Unger and four men missing. Two passenger automobiles and
two motorcycles were burned out. Three men found their way
to Levadeia. Fifty Communists from Levadeia were shot as
reprisal measures. Additional reprisal measures are intended.”
That the foregoing killings were excessive in most instances is
readily apparent. That no connection existed between the popu-
lation and the offense committed in many cases is shown. That
the reprisal and hostage practice here employed was not one of
last resort but one of the first instance in most cases can be
seen. The incidents cited show cases where the hostages were
taken and killed at a distance from the place of the offense. Court
martial proceedings are not mentioned. That the incidents re-
cited, indicating the practice followed, were not in accord with

international law is beyond question. The responsibility of the
defendant therefore has been established beyond a reasonable
doubt.

We find the defendant Speidel guilty on count one of the
indictment.

Evidence has been produced in an attempt to show that the
Allied armies, or units thereof, engaged in the practice of taking
and killing hostages and reprisal prisoners. There is but one
instance cited that even resembles a case of shooting in reprisal.
As to this, the evidence shows that four persons were shot by
Allied forces in Reutlingen, Germany, during the invasion. The
official announcement proclaimed, however, that those responsible
for the killing of a French soldier had been apprehended and
shot. There is no convincing evidence that it was a hostage
or reprisal shooting. It is not shown that a single hostage or
reprisal prisoner had been killed by Allied forces throughout the
course of the late war. It also has been stated in the evidence
and argued to the Tribunal that the rules of war have changed
and that war has assumed a totalitarian aspect. It is argued
that the atom bombings of Hiroshima and Nagasaki in Japan
and the aerial raids upon Dresden, Germany in the final stages
of the conflict afford a pattern for the conduct of modern war and
a possible justification for the criminal acts of these defendants.
We do not think the argument is sound. The unfortunate pattern
adopted in the Second World War was set by Germany and its
allies when hostilities were commenced. The methods of warfare
employed at Rotterdam, Warsaw, Belgrade, Coventry, and Pearl
Harbor can aptly be said to provide the sources of the alleged
modern theory of total war. It is not our purpose to discuss the
lawfulness of any of these events. We content ourselves with the
statement that they can give no comfort to these defendants as
recriminatory evidence.

Throughout the course of this opinion we have had occasion
to refer to matters properly to be considered in mitigation of
punishment. The degree of mitigation depends upon many fac-
tors including the nature of the crime, the age and experience
of the person to whom it applies, the motives for the criminal
act, the circumstances under which the crime was committed,
and the provocation, if any, that contributed to its commission.
It must be observed, however, that mitigation of punishment does
not in any sense of the word reduce the degree of the crime. It
is more a matter of grace than of defense. In other words, the
punishment assessed is not a proper criterion to be considered in
evaluating the findings of the Court with reference to the degree
of magnitude of the crime.

1317

It has been suggested in the course of the trial that an element
of unfairness exists from the inherent nature of the organiza-
tional character of the Tribunal. It is true, of course, that the
defendants are required to submit their case to a panel of judges
from a victor nation. It is unfortunate that the nations of the
world have taken no steps to remove the basis of this criticism.
The lethargy of the world’s statesmen in dealing with this matter,
and many other problems of international relations, is well known.
It is a reproach upon the initiative and intelligence of the civilized
nations of the world that international law remains in many
respects primitive in character. But it is a matter with which
this Tribunal cannot deal, other than in justifying the confidence
reposed in its members by insuring to the defendants a fair,
dispassionate, and impartial determination of the law and the
facts. A tribunal of this character should through its delibera-
tions and judgment disclose that it represents all mankind in an
effort to make contribution to a system of international law and
procedure, devoid of nationalistic prejudices. This we have en-
deavored to do. To some this may not appear to be sufficient pro-
tection against bias and prejudice. Any improvement, however,
is dependent upon affirmative action by the nations of the world.
It does not rest within the scope of the functions of this Tribunal.

B. Sentences

The reading of the opinion and judgment having been con-
cluded, the Tribunal will now impose sentence upon those defend-
ants who have been adjudged guilty in these proceedings. As
the name of each defendant is called, he will arise, proceed to the
center of the dock and put on the earphones.

The defendant Wilhelm List will arise.

Wilhelm List, on the counts of the indictment on which you
have been convicted, the Tribunal sentences you to life imprison-
ment. You will retire with the guards.

Walter Kuntze. Walter Kuntze, on the counts of the indict-
ment on which you have been convicted, the Tribunal sentences
you to life imprisonment. You will retire with the guards.

Lothar Rendulic. Lothar Rendulic, on the counts of the in-
dictment on which you have been convicted, the Tribunal sen-
tences you to 20 years of imprisonment. It is the order of the
Tribunal that you will receive credit upon your sentence for the
time already spent in confinement and pending trial, namely,
from 13 September 1946. You will retire with the guards.

1318

Ernst Dehner. Ernst Dehner, on the count of the indictment
on which you have been convicted, the Tribunal sentences you to
7 years of imprisonment. It is the order of the Tribunal that you
receive credit upon your sentence for the time already spent in
confinement and pending trial, namely, from 29 December 1946.
You will retire with the guards.

Ernst von Leyser. Ernst von Leyser, on the counts of the
indictment on which you have been convicted the Tribunal sen-
tences you to 10 years of imprisonment. It is the order of the
Tribunal that you receive credit upon your sentence for the
time already spent in confinement and pending trial, namely, from
18 December 1946. You will retire with the guards.

Hubert Lanz. Hubert Lanz, on the counts of the indictment
on which you have been convicted the Tribunal sentences you
to 12 years of imprisonment. It is the order of the Tribunal that
you receive credit upon your sentence for the time already spent
in confinement and pending trial, namely, from 17 January 1947.
You will retire with the guards.

Helmuth FELMY. Helmuth Felmy, on the counts of the indict-
ment on which you have been convicted the Tribunal sentences
you to 15 years of imprisonment. It is the order of the Tribunal
that you receive credit upon your sentence for the time already
spent in confinement and pending trial, namely, from 4 January
1947. You will retire with the guards.

Wilhelm Speidel. Wilhelm Speidel, on the count of the indict-
ment on which you have been convicted the Tribunal sentences
you to 20 years of imprisonment. It is the order of the Tribunal
that you receive credit upon your sentence for the time already
spent in confinement and pending trial, namely, from 13 Decem-
ber 1946. You will retire with the guards.

The defendants Hermann Foertsch and Kurt von Geitner
having been acquitted, shall be discharged from custody by the
Marshal when the Tribunal presently adjourns. They will retire
with the guards.

The Tribunal now stands adjourned without day.

1319

XII. CONFIRMATION OF SENTENCES BY THE
MILITARY GOVERNOR OF THE UNITED
STATES ZONE OF OCCUPATION

A. Introduction

Under Articles XV and XVII of Ordinance No. 7, the sentences
imposed by the Tribunal are subject to review by the Military
Governor. On 18 January 1949, General Lucius D. Clay, Military
Governor of the United States Zone of Occupation, confirmed by
separate orders the life sentences imposed upon the defendants
List and Kuntze and the sentences for a term of years imposed
upon the defendants Dehner, Felmy, Lanz, von Leyser, Rendulic,
and Speidel. The order in the case of defendant List is repro-
duced below as an example of the confirming orders.

B. Order of the Military Governor Confirming the Life
Sentence Imposed Upon the Defendant List

HEADQUARTERS, EUROPEAN COMMAND
Office of the Commander in Chief
APO 742
Berlin, Germany

18 January 1949
Military Tribunal V
Case No. 7

In the Case of The
United States of America

vs.

Wilhelm List, et al.

Order with Respect to Sentence of Wilhelm List

In the case of the United States of America against Wilhelm
List, et al., tried by United States Military Tribunal V, Case No. 7,
Nuremberg, Germany, the defendant Wilhelm List, on 19 Feb-
ruary 1948, was sentenced by the Tribunal to life imprisonment.
A petition to modify the sentence filed on behalf of the defendant
by Dr. Hans Laternser, his defense counsel, has been referred to
me pursuant to the provisions of Military Government Ordinance
No. 7. I have duly considered the petition and the record of the

1320

trial, and in accordance with Article XVII of said Ordinance,
it is hereby ordered that:

a. The sentence imposed by Military Tribunal V on Wilhelm
List be, and hereby is, in all respects confirmed.

b. The defendant be confined in War Criminal Prison No. 1,
Landsberg, Bavaria, Germany. i

[Signed] Lucius D. Clay
Lucius D. Clay
General, U. S. Army
Military Governor and
Commander in Chief European Command

1321

XIII. EXTRACT OF ORDER OF SUPREME COURT
OF THE UNITED STATES DENYING LEAVE
TO FILE FOR HABEAS CORPUS

SUPREME COURT OF THE UNITED STATES
October Term, 1948

*****

In the Matter of Wilhelm List.

In the Matter of -Lothar Rendulic.

In the Matter of Walter Kuntze.

In the Matter of Helmuth Felmy.

In the Matter of Hubert Lanz.

In the Matter of Ernst Dehner.

In the Matter of Ernst von Leyser.

In the Matter of Wilhelm Speidel.

*****

ORDER

“Treating the application in each of these cases as a motion for
leave to file a petition for an original writ of habeas corpus, leave
to file is denied. The Chief Justice, Mr. Justice Reed, Mr. Justice
Frankfurter, and Mr. Justice Burton are of the opinion that there
is want of jurisdiction. U. S. Constitution, Article III, Section 2,
Clause 2; see Ex parte Betz and companion cases, all 329 U. S.
672 (1946) ; Milch v. United States, 332 U. S. 789 (1947) ; Brandt
v . United States, 333 U. S. 836 (1948) ; In re Eichel, 333 U. S. 865
(1948) ; Everett v. Truman, 334 U. S. 824 (1948). Mr. Justice
Black, Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice
Rutledge are of the opinion that argument should be heard on the
motions for leave to file the petitions in order to settle what
remedy, if any, the petitioners have. Mr. Justice Jackson took
no part in the consideration or decision of these applications.”

May 2, 1949.

* *

No. 455 Misc.
No. 456 Misc.
No. 457 Misc.
No. 458 Misc.
No. 459 Misc.
No. 460 Misc.
No. 461 Misc.
No. 462 Misc.
* *

1322

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893964—51 86

1323

List of Witnesses in Case 7

[Note. — All witnesses in this case appeared before the Tribunal. Prosecution
witnesses are designated by the letter “P”, defense witnesses by the
letter “D”. The names not preceded by any designation represent
defendants, testifying in their own behalf. Designation “ 1 ” shows
witnesses called by defense although affidavit was submitted by prose-
cution. Designation “2” shows witnesses called by prosecution al-
though affidavit was submitted by the defense. Extracts from testi-
monies in this case are listed in the index of documents and testi-
monies.]

Name

Dates of testimony

Pages

(mimeographed transcript)

D

Altenburg, Guenther.

8, 9 Dec 47 _

7304-7352

P

Bach-Zelewski, Erich von dem_

14 Jan 48

8913-9005

D

Behr, Heinrich von

21 Jan 48

9416-9450

D

Berghofer, Dr. Robert

9 Dec 47

7352-7370

P

Bernstein, David B _

20 Jan 48

9370-9376

D

Besser, Dr. Hans Joachim von__

17, 18 Nov 47

6207-6239

D

Bub, Dr. Heinrich.

21, 22 Oct 47

4767-4821

P

Dahl, Arne Dagfin

25 Aug 47

2651-2680

Dehner, Ernst Friedrich _ _

17-19 Dec 47

7866-8081

D

Feine, Gert

23 Sept 47

3469-3479

P

Felber, Gustav Hans. . _ _

11-13 Aug 47;

23 Jan 48

1680-1875; 9539-9551

Felmy, Helmuth Walter Wolfgang

1-5, 8 Dec. 47;

22 Jan 48

6888-7303; 9527-9532

P

Finger, Willy .

20, 21 Jan 48

9377-9399; 9451-9452

Foertsch, Hermann

9, 10, 13-17, 20,

21 Oct 47

4044-4699

P

Follestad, Ivar _

26 Aug 47 .

2739-2742

Geitner, Kurt Ritter von.

22-24, 27, 28 Oct 47

4823-4980; 5061-5123

D

Greiffenberg, Hans von

8, 9 Oct 47

3942-4041

2

Harling, Franz von

16 Jan 48

9131-9139; 9144-9164

D

Hassold, Paul

13 Jan 48-

8862-8867

D

Hirschmann, Xaver

12 Jan 48

8775-8790

D

Hoelter, Hermann __

4, 5 Nov 47

5549-5615

2

Hoth, Hermann _ __ __

16 Jan 48

9092-9101

D

Ibbeken, Dr. Rudolf..

6, 7 Oct 47 .

3761-3836

P

Iovanovitch, Zivosin..

30 31 July 47

1151-1208

P

Jodl, Ferdinand .

22, 25 Aug 47

2573-2588; 2593-2625

D

Kaiser, Joseph

12 Jan 48-

8791-8800

D

Kobe, Gerd._

18, 19 Nov 47

6239-6318

P

Korn, Ernst

20 Jan 48. _

9349-9370

D

Kraeutler, Karl...

8 Oct 47

3906-3941

D

Krage, Herbert. _ _

7, 8 Oct 47

3854-3906

Kuntze, W T alter _.

24-26 Sept;

6 Oct 47

3526-3760

D

Lange, Joachim

9 Dec 47.

7371-7420

1324

List of Witnesses in Case 7, Cont'd

Name

Dates of testimony

\

Pages

(mimeographed transcript)

D

Lanz, Karl Hubert. , _ _

19-21, 24-26 Nov;

1

Lattmann, Erich _ _

1 Dec 47; 8 Jan

48

19 Jan 48-. _

6320-6888; 8663-8664
9227-9248

2

Leyser, Ernst Hans Ulrich von__
List, Siegmund Wilhelm Walther

Mahlmann, Paul.

5-7, 12-14, 17 Nov
47; 22 Jan 48-___
16-19, 22, 23, Sept
47; 13, 22 Jan 48

21 Jan 48

5666-6206; 9520-9522

3148-3464; 8824-
8858; 9484-9493
9401-9404

P

Neris, Nicolas Johan

14, 15 Aug 47

1989-2069

P

2

Pappas, Stephanos--

Pemsel, Max

18 Aug 47_

21 Jan 48

2175-2198

9405-9415

P

Reinhardt, Hans _

16 Jan 48

9177-9182

2

Rendulic, Lothar __ _

Reymann, Helmuth- _

28-31 Oct; 3 Nov
47; 22 Jan 48.—
19 Jan 48

5125-5472; 9504-9519
9248-9263

D

Ruehm, Julius

9, 12 Jan 48

8719-8728

P

D

Schance, Trygve _ _ __

Scheller, Dr. Georg

26 Aug 47

9 Jan 48

2693-2734

8677-8687

2

Schleswig-Holstein-Glueck-
berg, Prinz Friedrich Ferdin-
and von

19, 20 Jan 48 -

9277-9286; 9295-9327
4700-4705

D

Schmettow, Mathias Graf

21 Oct 47

2

Selchow, Hans Harold von

21 Jan 48 _

9460-9474

P

Sontis, Dr. Johannes

21 Aug 47

2453-2499

P

Speidel, Wilhelm

Spiliopoules, Takis

10-12, 15-17

Dec 47

19, 20 Aug 47

7483-7862

2273-2338

D

Stadtmueller, Dr. Georg

9, 10 Dec 47. __ __

7420-7480

D

Sydow, Friedrich Adolf von

7 Oct 47

3836-3854

P

Triandaphylidis, Constantinos.

15, 16, 18, 20 Aug

D

Varnbuehler, Ulrich, Freiherr
von __

47

3, 4 Nov 47

2071-2175; 2339-2352
5473-5540

D

Vogel, Emil Wilhelm

5 Nov 47

5616-5649

D

Winning, Die tloff von. . _

23, 24 Sept 47

3479-3525

2

Winter, August

19 Jan 48

9187-9218

D

Wollny, Gerhard _ _

21 Oct 47

4712-4766

2

Zorn, Willy ___ _ _

20 Jan 48

9328-9341

1325

INDEX OF DOCUMENTS AND TESTIMONIES
IN CASE 7

(This is not a complete index of evidence submitted in Case No. 7. Only
those documents and testimonies which are reproduced herein are listed.)

Document No. Exhibit No.

Description

Page

NO-2943.

NO-2944.

NO-2952.

NOKW-076.

NOKW-084.

NOKW-086.

NOKW-090.

NOKW-154.

NOKW-155.

Pros. Ex. 21 Extracts from situation report 924

U.S.S.R., No. 28 of the Security
Police and SD, 20 July 1941,
concerning reprisal actions in
Serbia.

Pros. Ex. 22 Extracts from situation report 925

U.S.S.R., No. 30, 22 July 1941,
concerning reprisal actions in
Yugoslavia.

Pros. Ex. 26 Extract from situation report 938

U.S.S.R., No. 37, 29 July 1941,
concerning reprisal action
against Jews in Belgrade.

Pros. Ex. 338b Teletype from 2d Panzer Army to 914

Plenipotentiary German Gen-
eral in Croatia, 17 September
1943, concerning desertion of
Croatian units.

Pros. Ex. 42 Directive of defendant List, 5 964

September 1941, concerning
suppression of Serbian parti-
san movement.

Pros. Ex. 504 Teletype from 20th (Mountain) 1114

Army to subordinate units, 29
October 1944, signed by the de-
fendant Rendulic, concerning
evacuation of northern Nor-
way.

Pros. Ex. 506 Report from evacuation staff to 1118

20th Mountain Army, 25 No-
vember 1944, concerning evacu-
ation of northern Norway.

Pros. Ex. 424 Order of Military Commander 1032

Southeast, 1 January 1944, con-
cerning competency for order-
ing reprisal measures.

Pros. Ex. 306 Order of the Commander in Chief 1027

Southeast, 10 August 1943,
concerning deportation of pris-
oners and enemy deserters, and
reprisal and evacuation meas-
ures.

1326

Document No.

Exhibit No.

Description

Page

NOKW-159 Pros. Ex. 417—.

NOKW-159 Pros. Ex. 417___.

NOKW-192 Pros. Ex. 78.

NOKW-203 Pros. Ex. 70

NOKW-235 Pros. Ex. 140

NOKW-258 Pros. Ex. 53

NOKW-380 Pros. Ex. 283

NOKW-382 Pros. Ex. 263

NOKW-387 Pros. Ex. 99.

NOKW-458 Pros. Ex. 69

Extract from order of Military
Commander Southeast to High-
er SS and Police Leader, 23
October 1943, concerning exe-
, cution of hostages.

Order of Military Commander
Southeast to Higher SS and
Police Leader, 23 October 1943,
directing reprisal executions ;
report of Military Commander
Southeast to 809th Administra-
tive Area Headquarters, 26
November 1943, concerning
executions.

Order of Commanding General
Serbia, 4 October 1941, declar-
ing that 2,100 concentration
camp inmates be shot for the
killing of 21 German soldiers.

Order from defendant List to
Commanding General Serbia,
4 October 1941, concerning
treatment of male population
in clearing areas of partisans.

Order of General Boehme, 2 No-
vember 1941, concerning sup-
pression of Serbian resistance.

Keitel Order, 16 September 1941,
concerning suppression of in-
surgents in occupied territories.

Extracts of report from Com-
manding General Serbia to
Commander in Chief Southeast,
18 June 1943, concerning exe-
cution of hostages.

Order of Commanding General
Serbia, 28 February 1943, con-
cerning reprisal measures and
reducing reprisal ratios.

Report to Commanding General
Serbia, 20 October 1941, con-
cerning severe reprisal meas-
ures.

Keitel order concerning taking of
hostages, 28 September 1941,
and letter of transmittal signed
by defendant Foertsch, 4 Octo-
ber 1941.

931

1029

976

975

993

971

1026

1020

980

973

1327

Document No.

Exhibit No.

Description

Page

NOKW-469.

NOKW-529

NOKW-557

NOKW-830.

NOKW-865.

NOKW-898.

NOKW-899.

NOKVV-905.

NOKW-916.

Pros. Ex. 482 Extracts from report of Special

Plenipotentiary Southeast, con-
cerning “The Blood Bath of
Klissura ,, (Greece), 15 May
1944, via foreign office to Com-
mander in Chief Southeast for
investigation.

Pros. Ex. 35 Order of Military Commander

Serbia, 21 August 1941, con-
cerning transfer of captured
partisans to Einsatzgruppen.

Pros. Ex. 88 Order of Commanding General

Serbia, Boehme, 10 October
1941, directing the shooting of
50 and 100 prisoners or host-
ages for each German, or eth-
nic German, soldier wounded or
killed.

Pros. Ex. 326 Extracts from war diary of XV

Mountain Corps, 26 October to
31 December 1943, regarding
shootings of Italian officers.

Pros. Ex. 452 Extracts from messages and or-

der of 1st Mountain Division,
18-24 September 1943, per-
taining to operation “Verrat”
[Treason].

Pros. Ex. 317 Keitel order, 9 September 1943,

concerning treatment of Italian
soldiers.

Pros. Ex. 250 Letter from Commanding Gen-

eral Serbia to Prime Minister
Nedic, 22 January 1943, con-
cerning reprisal measures by
the Serbian Government.

Pros. Ex. 143 Report from 734th Infantry Regi-

ment to 704th Infantry Divi-
sion, 4 November 1941, enclos-
ing report of the shooting of
Jews and gypsies. ( Photo-
graphic reproduction appears
in Section VIII.)

Pros. Ex. 223 Extracts from basic order, 15

September 1943, signed by
Keitel, concerning treatment of
members of Italian Army.

1034

926

977

1088

1086

1078

923

995

1081

1328

Document No.

Exhibit No.

Description

Patfe

NOKW-945 Pros. Ex. 174

NOKW-946 Pros. Ex. 189

NOKW-1028 Pros. Ex. 197

NOKW-1028 Pros. Ex. 197

NOKW-1052 Pros. Ex. 146

NOKW-1099 Pros. Ex. 251

NOKW-1156 Pros. Ex. 229

NOKW-1202 Pros. Ex. 106

NOKW-1246 Pros. Ex. 472

Draft of teletype from Armed
Forces Commander Southeast
to Commanding General Ser-
ibia, 6 February 1942, request-
ing reports on all reprisal
measures. ( Photographic re-
production appears in Section
VIII.)

Order of Headquarters Armed
Forces Commander Southeast,
27 March 1942, concerning
designation of partisans and
Chetniks.

Extracts from Operational Order
No. 5 of 718th Infantry Divi-
sion, 14 April 1942, concern-
ing subordination of Croatian
Armed Forces and Ustasha
troops under German com-
mand.

Enclosure to Operational Order
No. 5 of 718th Infantry Divi-
sion, titled “Combat Directive,”
14 April 1942, concerning iden-
tification and treatment of par-
tisans.

Activity reports of 342d Infan-
try Division to Plenipotentiary
Commanding General Serbia,
30 October and 18 Novem-
ber 1941, concerning reprisal
measures.

Order of Commander of German
Forces in Croatia, 7 January
1943, concerning the exercise
of executive power.

Extracts from report of Com-
manding General Serbia, 30
October 1942, concerning Tito
movement.

German proclamation to Serbian
population, October 1941, an-
nouncing the 100:1 reprisal

ratio.

Extracts from war diary No. 3,
LXVIII Army Corps, concern-
ing operations in Peloponnesus
Greece, 28 November to 14 De-
cember 1943.

999

1006

912

1007

997

915

1013

979

1030

1329

Document No.

NOKW-1352

NOKW-1353

NOKW-1354

NOKW-1379

NOKW-1403

NOKW-1424

NOKW-1438

NOKW-1492—

NOKW-1776

Exhibit No. Description Page

Pros. Ex. 386 Extracts of report from 2d Pan- 932

zer Army, 14 March 1944,
signed by defendant Rendulic,
concerning cooperation with
SS in northern Croatia.

Pros. Ex. 387 Order from 2d Panzer Army to 933

XV Mountain Corps, 17 March
1944, concerning tactical sub-
ordination of SS to 2d Panzer
Army.

_ Pros. Ex. 447 Extracts of daily reports from 1084

Commander in Chief South-
east, 19-28 September 1943, to
Operations Section OKH.

Pros. Ex. 137 Extract of intelligence report of 984

342d Infantry Division, 1 No-
vember 1941, concerning insig-
nia worn by Chetniks and par-
tisans.

Pros. Ex. 319 Extracts from order and teletype 1080

from XV Mountain Corps to
subordinate units, 11-12 Sep-
tember 1943, concerning dis-
armament and evacuation of
Italian troops.

Pros. Ex. 48 Request of defendant List to 967

OKW, 13 September 1941, for
unification of command in fight
against Serbian partisans.

Pros. Ex. 419 Letter from Commander in Chief 928

Southeast, Army Group F, 11
October 1943, forwarding Kei-
tel order of 7 September 1943,
concerning the appointment
and jurisdictional relations of
“Higher SS and Police Leader”
in Greece*

Pros. Ex. 49 Hitler Order, 16 September 1941, 969

charging defendants List and
Boehme with the task of sup-
pressing of the insurgent move-
ment in southeastern area.

Pros. Ex. 500 Extracts of teletype from Fueh- 1113

rer Headquarters signed by
Jodi to 20th Mountain Army,

4 October 1944, ordering evacu-
ation of northern Norway.

1330

Document No.

Exhibit No.

Description

Page

NOKW-1806 Pros. Ex. 539 Extracts from report by the High 1015

Command of the Army, 9 Feb-
ruary 1943, concerning Chetnik
(Mihailovic) movement.

Norway 10 Pros. Ex. 519 Proclamation to Norwegian pop- 1117

ulation, signed by Rendulic
and Terboven.

Foertsch 83 Foertsch Ex. 72 Extracts from situation report 985

Balkans, 2 November 1941, is-
sued by intelligence section,
Armed Forces Commander
Southeast.

Kuntze 64 Kuntze Ex. 7 Extracts of report to Armed 1000

Forces Commander Southeast
from war diary of Plenipoten-
tiary Commanding General
Serbia, March 1942, concern-
ing court martial investigations
and care for prisoners of war.

Kuntze 65 Kuntze Ex. 10 Extracts from reports of Com- 1002

manding General Serbia to
Armed Forces Commander
Southeast, 10, 20, and 31 March
1942, concerning plans for re-
volt, sabotage, and recruiting
activities of partisans.

Kuntze 66 Kuntze Ex. 14 Extracts from 10-day reports of 1009

Commanding General Serbia
to Armed Forces Commander
Southeast, 30 April 1942.

Kuntze 67 Kuntze Ex. 19 Extracts of reports from Com- 1010

manding General Serbia to
Armed Forces Commander
Southeast, 1 and 20 July 1942,
concerning revolt in Croatia
and situation in other areas.

Lanz 36 Lanz Ex. 41 Affidavit of Klaus Goernandt, 15 1049

September 1947, concerning ac-
tions of Greek “insurgent”
units.

Lanz 119 Lanz Ex. 45 Affidavit of Karlheinz Bensch, 3 1054

October 1947, concerning par-
tisan fighting methods in
Greece and Serbia.

Lanz 191 Lanz Ex. 142 Affidavit of Wolf Christian von 1110

Loeben, 7 November 1947.

1331

Document No. Exhibit No. Description Page

List 27c List Ex. 49 Affidavit of Theodor Jestrabek, 1048

11 August 1947, concerning the
killing of German soldiers by
partisans.

List 202 List Ex. 46 Extracts from daily reports con- 917

tained in war diary of the Mili-
tary Commander Serbia, Sep-
tember 1941, concerning the
actions and difficulties of Ser-
bian Government.

List 202 List Ex. 46 Order of 6 September 1941, en- 928

closed in war diary of Military
Commander Serbia, concerning
police duty of Security Service
on troop trains.

List 202 List Ex. 46 Extracts from war diary of Mili- 951

tary Commander Serbia, Sep-
tember 1941.

List 205 List Ex. 45 Extracts from activity reports, 939

704th Infantry Division, 4
April to 30 September 1941.

TESTIMONIES

Page

Extract from testimony of defendant Rendulic 934

Extracts from testimony of defendant List 1036

Extracts from testimony of defendant Foertsch 1039

Extract from testimony of defense witness Dr. Rudolf Ibbeken 1056

Extracts from testimony of defendant Lanz 1088

Extract from testimony of defendant Rendulic 1123

☆u. 8. GOVERNMENT PRINTING OFFICE: 1951 893964

1332

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